After coming up with a core idea for a new product, Inventor jumps on chatGPT and asks the AI to expand upon the product idea, including providing additional design elements based upon the inventor’s original description. ChatGPT comes through with flying colors and provides several detailed designs that inventor had not considered. Inventor is diligent in their disclosure docs to include the chatGPT transcript. Patent search reveals that Inventor’s original idea is not patentable by itself, but it is likely patentable when combined with the chatGPT input. The patent attorney sees value in having claims directed solely to the features provided by chatGPT.
You are the patent attorney, what do you do in this situation?
Human inventor can argue that in her hands ChatGPT is merely a tool that was under her direction and control. She defined the parameters, and reviewed the results. First conception occurs when she realized that certain results of ChatGPT were useful. ChatGPT has no standing to contest, nor do the makers of ChatGPT.
Of course, like any good legal question, you can argue the other side.
That other side is now several years old – see DABUS.
Your attempt her though does NOT work if that person (real human person) cannot meet the legal definition of inventor.
THAT is what the fact pattern presented IS.
To further explore the NOT “as a tool” aspect, I am now tuning into the Fridman/Tegmark discussion at:
link to spotify.link
If one discloses their invention to AI, is it considered a confidential disclosure? I think others have touched on this.
If the servers are in a foreign country, is it an export of the invention?
Well, I typed my invention spec into my computer, but the computer was isolated from any “cloud”. Is that different from a legal standpoint, than had I typed in the same spec to a cloud-connected computer ? Imagine my dismay early 2014, had purchased a L brand computer solely for filings at PTO. Then, the US State Department came out with a memo banning all brand L’s computers from usage at that Department. I pondered, my Clients confidentiality would be compromised potentially, since the PTO was mum on the topic of the State Department memo/prohibition, concerning information security. So, we never filed electronically. Solves that risk easily.
The issue raised regards AI sharing information.
Cloudsharing, AI’s love it.
“what do you do in this situation?”
Hope and pray that your client’s patent/s never need to be asserted or is / are challenged . . . where — thanks to SCOTUS and the CAFC — the patent/s will be 101, 102, 103, or 112 invalidated.
Regardless of who / what you allege the inventor/s is / are.
Regardless of how you wrote the patent and its claims.
Regardless.
There seems to be a difference of opinion, what it means to “conceive” an “invention” that might be eligible for patent protection. When an AI:
“….provides several detailed designs that inventor had not considered”
has an act of conception of an invention yet occurred? I say not. I say that it occurs when a human looks at the output of the AI to assess it for its patentable potential. I say the human assessor, and not the AI outputter, is the entity to be named under the Patents Act as “inventor”.
But, looking into the near future, what if the AI is advanced enough to output not only the “designs” but also an all ready to file set of patent claims directed to the designs it has itself generated (let alone any designs that the human owners of the AI have themselves first come up with and then fed into the AI)? What then? I know who owns such a set of claims. But I’m less sure who to name as their inventor.
Why do you insist on throwing
C
R
A
P
against the wall?
This notion of second person to open a black box and read (and understand) the work of another simply does not — and cannot — satisfy the legal definition of inventor.
We have covered this now well over two years ago, MaxDrei. Your post adds nothing here.
Your second thought is even more asinine: “advanced enough to output not only the “designs” but also an all ready to file set of patent claims”
The notion of ‘all ready to file set of patent claims’ is both already here, and has nothing to do with the legal determination of inventor.
“This notion of second person to open a black box and read (and understand) the work of another simply does not — and cannot — satisfy the legal definition of inventor.”
Sure it can. People view matters from different perspectives, and it is common for some, to see things which others don’t. The same data presented to a plurality of ppl, typically results in a plurality of responses. A tiny few, will connect the dots of have a flash of genius, or otherwise conceive, recognize or appreciate inputs sufficiently, to make a useful advance. So, cannot is too strong a word.
“The notion of ‘all ready to file set of patent claims’ is both already here, and has nothing to do with the legal determination of inventor”
Incorrect. The subject matter of the claims is the essence of defining inventorship, there are several rules in the pto relating to changing inventorship when claims are amended during prosecution, so you might want to re-conceive this thought as well, Julia. :))
No is saying “and add a response,” Chrissy.
So no, the point stands
As to the claims, pay better attention, as it was not asserted “subject matter of the claims,” but rather the writing thereof.
Another rather bad miss for you.
good book by author Tobias titled “The Way They Learn” relates to seven identified different learning styles they observed in children, and proposed that a teach needs to be aware of learning-style differneces. On a forum of any type, if you find self being overly negative, suggest to review Tobias and realise not all readers perceive same, and you can potentially drive away some othewise good contributors, is my personal opinion under UN Article 19, and I hope you lighten up a little 🙂
I am not here to “make it easy for all to learn.”
What I say is valid. There are simply those who refuse to learn, no matter HOW I may choose to say it.
Don’t like it? Get a puppy.
No, but there were some who I sensed benefit would have come from more letting them let out what they meant, in some of these recent topics of high interest. I personally don’t care much but some folk do have “feelings”, which is the basis of Family, and Civilisation. So, I vehemently object to your immature bombasting bglsht rantings negativity about ppl having “feelings”. You’re such a Bot, a neg one at that, by your fruits, neggy, ya neggin old neg.
I NEVER deny that people may have feelings Chrissy.
But it is simply NOT acceptable to rely on feelings when counterpoints have been presented.
Sorry, but feelings do NOT get to Trump reality [pun intended].
Interesting hypothetical! Below is how ChatGPT answered it. To stimulate further thinking about how real this issue is, I’m also attaching a “patent drawing” for a motocross helmet that I quickly found on Midjourney (an AI image-generation software whose graphic output is based on a user’s text input).
ChatGPT’s Answer to hypothetical:
As the patent attorney in this situation, my primary responsibility is to serve the best interests of my client, the Inventor. Here are the steps I would take:
1. Assess the situation: Review the chatGPT transcript and the newly discovered design elements. Determine how these features improve or modify the original invention and assess the likelihood of obtaining patent protection for the new combination.
2. Inform the client: Explain the situation to the Inventor, including the potential value of the chatGPT input and the possible outcomes of including these features in the patent application. Discuss the potential risks and benefits of pursuing patent protection for the invention with the added chatGPT features.
3. Seek guidance on AI-generated content: Research and consult with colleagues, legal experts, or patent examiners to understand the current stance on patentability and inventorship of AI-generated content. This is important because the inclusion of AI-generated features in a patent application may raise questions about ownership and inventorship.
4. Evaluate inventorship: Determine if chatGPT’s contribution to the invention rises to the level of inventorship. If it does, consider listing chatGPT or its developer, OpenAI, as a co-inventor, in accordance with the prevailing legal requirements and guidelines.
5. Draft the patent application: Assuming it is legally permissible, prepare and file a patent application that includes claims directed to the new combination of the Inventor’s original idea and chatGPT’s input. Ensure that the application clearly describes the chatGPT-generated features and their relationship to the Inventor’s original idea.
6. Monitor and adjust: Keep an eye on the evolving legal landscape surrounding AI-generated content and be prepared to amend the application or respond to any objections raised by the patent examiner.
7. Maintain transparency: Throughout the process, maintain open communication with the Inventor, providing updates and seeking their input as needed.
By following these steps, I can help the Inventor navigate the challenges posed by AI-generated content in the patent application process while maximizing the potential value of their invention.
Follow-up question:
Regarding your second numbered point, list some of the potential risks and benefits of pursuing patent protection for the invention with the added chatGPT features.
Follow-up answer:
Here are some potential risks and benefits of pursuing patent protection for the invention with the added chatGPT features:
Benefits:
1. Broader protection: Including chatGPT-generated features may result in broader patent protection, covering a wider range of embodiments, which could help deter competitors from developing similar products or using the patented technology.
2. Increased value: Adding chatGPT-generated features could make the invention more innovative, valuable, and attractive to potential licensees or investors.
3. Increased likelihood of grant: If the chatGPT-generated features render the invention patentable when the original idea alone was not, including them in the application could increase the likelihood of obtaining a patent grant.
4. Encouraging innovation: Including AI-generated features in a patent application can demonstrate the Inventor’s openness to embracing new technologies and willingness to explore novel solutions to existing problems.
Risks:
1. Ownership and inventorship disputes: Including chatGPT-generated features may raise questions about ownership and inventorship, potentially leading to disputes with OpenAI or others. Legal frameworks for AI-generated content are still evolving, and there may be uncertainties in how courts or patent offices handle such cases.
2. Increased complexity: Adding chatGPT-generated features might increase the complexity of the patent application, which could make the drafting and prosecution process more challenging and time-consuming.
3. Public perception: Some stakeholders might view the use of AI-generated content in a patent application as controversial, which could affect the Inventor’s reputation or the public perception of the invention.
4. Legal uncertainties: As the legal landscape surrounding AI-generated content is still evolving, there is a risk that including chatGPT-generated features in the patent application could result in unexpected legal issues, such as changes in patent eligibility or ownership guidelines.
By considering these potential risks and benefits, the Inventor can make a more informed decision about whether to pursue patent protection for the invention with the added chatGPT features.
By the way (me talking again, not ChatGPT):
I looked at OpenAI’s terms of use, and found a few notable points:
Non-use: “We do not use Content that you provide to or receive from our API (“API Content”) to develop or improve our Services.”
Ownership: “As between the parties and to the extent permitted by applicable law, you own all Input. Subject to your compliance with these Terms, OpenAI hereby assigns to you all its right, title and interest in and to Output. This means you can use Content for any purpose, including commercial purposes such as sale or publication, if you comply with these Terms. OpenAI may use Content to provide and maintain the Services, comply with applicable law, and enforce our policies.”
By the way, the text prompt for the helmet image I posted was “patent drawing of a minimalisitc motorcross helmet surrounded by notes about unique features,” by user @OwlInABowl (not me)
Big +1 Bill. A keeper. Thanks for your time and effort.
This is literally the least helpful pile of mealy mushmouth one could create if one tried. Why not just ask “What are a bunch of views about AI and patents, including the views of people who are wrong about everything without indicating who those people are or why they might have those views?”
Maybe ask this brilliant machine about the horrible “risks” of using the term “invention” in a patent specification. That’ll be worth a few laughs. Ask it about the viability of the Supreme Court’s holding in Diehr with respect to claim dissection. I’ll make the popcorn.
You really cannot control those emotions of yours, can you Malcolm?
The “non-use” was recently publicly changed (regardless of that catching up to the TOS on the site).
Also, as the site has not signed any NDA or third party non-publication agreement, this will be deemed a sharing of information to the public.
The role of the GPT session may have been limited to helping the inventor recognize the utility of some existing features, as opposed to suggesting new, features. On the other hand, it may have suggested (or hinted at may be more likely) organizing existing features in a useful way.
Need to disclose enough so as not to get tripped up in litigation of the issued patent.
Or the session may have been more like a sounding board allowing the human inventor to gain a firmer concept of her invention.
The hypo is given as it is given.
One need not count the angels dancing on the heads of other hypothetical pins.
Neither invite nor entertain such distractions. Leastwise until people stop misrepresenting the given facts of this hypo.
Or an Inventor can tell what the Judge knew already about ATTY. RICHARD C. LITMAN WHO STOLE MY INTELLECTUAL PROPERTY. ATTY FOX OBVIOUSLY HAD NO IDEA I SENT THE COUNTERFEIT RECRIPTS TO THE SECRET SERVICE. AND THST JUDGE TODD RETIRED BECAUSE HE KNEW I NEVER HOT THE CASE INFO TELLING ME I HAD 30 DAYS TO GET AN ATTY REGARDING. ATTY RICHSRD C. LITMANS THEFT OF MY PATENTS.
I don’t know who I feel sorrier for, Cox or Litman when I get this story to a top notch investigative reporter.
That was ATTY COX, not FOX.
If you know how to pass a PAYWALL in my FB PAGE, MY FB PAGE HAS A PAYWALL TO HIDE MY POSTS BECAUSE OF INVENT HELP, RICHARD LITMAN, AND EUGENE QUINN THAT BLED TO A MASSACHUSEETS LAW FIRM WHERE MY ATTY ALLOWED HIS PARTNER TO INVOLVE HIMSELF CRIMINALLY IN MY CASE.THIS ATTY HAS MY SETTLEMENT. I KNOW MY CASE HAS NO STATUTE BECAUSE I AM STILL BEING DENIED DUE PROCESS. AFTER A PAYOFF MY IP BECAME THE PROPERTY OF ARTY. EUGENE QUINN. IN DEC OF 2011 I SENT A COMPLAINT TO NH AGAINST EUGENE QUINN. MY COMPLAINT WAS REMOVED. THE ATTY THAT WAS WITH MY ATTY. THEN FIKED A CASE AGAINST EUGENE QUINN ON DEC 19, 2011, CLAIMING IT WAS ME? THE USPS REMOVED MY COMPLAINT GOING TO NH. WHEN I CALLED THE NH DISCIPLINARY BAR FOR EUGENE QUINNS ADDRESS, JOHN’S I WAS GIVEN HIS BUSINESS PARTNER’S ADDRESS IN BETHESDA MD. DID YOU KNOW THEY WERE ONCE LAW PARTNERS? OF COURSE YOU DID.
WHY WOULD THE DISCIPLINARY BAR GIVE ME THAT ADDRESS. YAH THINK… BREAKING INTO MY LINE IS EASY WHEN YOU ARE CONNECTED SND HIDING WHAT WAS GOING ON.
If the “inventor” is asked, under oath, regarding the claims to ChatGPT sourced subject matter, whether she conceived of that subject matter, and the inventor answers truthfully, the answer should be “no.” If “determining inventorship is nothing more than determining who conceived” what is recited in the claims, that should mean that she is not an inventor of those claims. Can the USPTO legally issue a patent with no human inventor? Currently, the answer appears to be “no.” I happen to agree with that conclusion. Could the law be changed to allow the USPTO to issue a patent with no human inventor? I believe the Constitution would have to be amended for that to be legal. Absent that, there is the Tenth Amendment to consider.
Haha, yes, the Founders could not have contemplated inventions made by non-human entities, and accordingly it was not possible at that time for the several States to have delegated subject matter jurisdict to the national government on non-human-derived patent matters evidenced inter alia by the requirement to read and sign a Declaration. Thus, inventions having non-human inventors, should to be handled at the State level. Once this framework is established in the State houses, I’ll “come out” with my declaration that I identify as a machine, and file all my specs in Texas.
Sorry Chrissy, but no — federal preemption removes your desire for some type of “State Patent” system.
Ron – the DABUS case was strictly about a single inventor (alone), but even at that time I raised the issue that the exact legal point applies fully to co-inventors.
There is a purposeful attempt to obfuscate with repeated exhortations of “mere use of tool,” and it is (and should be) abundantly clear that AI is not that fact pattern of mere use of a tool.
“ There is a purposeful attempt to obfuscate with repeated exhortations of “mere use of tool,””
There is no “obfuscation”. Computers are machines, regardless of what meaningless trendy name you fabricate and stamp on them. If a human uses a machine (including a computer) for any useful purpose, that machine may be referred to correctly as a “tool”.
Get used to it, gaslighter. Also, software is instructions. Choke on it.
Pull your head out (and either stop yelling at the kids walking on your lawn, get out of your mother’s basement, or both).
I believe the Constitution would tolerate the USPTO issuing a patent to human and non-human co-inventors. 35 USC 115 would need amendment.
The Constitution would tolerate giving copyrights to monkeys, too. So what?
The question is: what is the reason for this radical change? Who are the advocates for making this change and why are they advocating doing that (what are they saying publicly and what other motivations might exist)? What are the downsides to effecting this change (both short term and long term)?
Some modicum of seriousness would be nice instead of this “Omg I am so impressed by this machine we need to treat it like a person slobber slobber tech slobber luddites in my way slobber slobber drool”.
“…believe the Constitution would tolerate the USPTO issuing a patent to human and non-human co-inventors”
Ron, I must vehemently disagree.
As much as Greg “I Use My Real Name except when I post as Dozens” DeLassus might mindlessly attempt to waive his hands about, the Constitutional delegation of authority to the Legislative branch as The basis of patent law has as its foundation the Lockean nature of the real person’s inchoate right being turned into the basket of full legal rights through the designated Quid Pro Quo.
There is no “there” there for non-human invention protection.
Malcolm comes close (and still manages to miss) with the reference to copyrights to simians (Naruto).
One would need a much larger Constitutional amendment to provide for any initial starting point for a non-human.
See also Stanford v. Roche 563 U.S. 776.
By the by, with Easter tomorrow, our pleasant vacation from Greg Dozen’s posts will draw to a close.
“You are the patent attorney, what do you do in this situation?”
Your invention may or may not be patentable, but if you provide me a retainer in the amount of $_____[fill in boatload of money], I will draft an application for you. While there is no case law yet on whether Chat GPT can only obtain information already known to a person of ordinary skill in the art, and therefore prior art disclosing your original idea combined with the knowledge of a person of ordinary skill might be viewed by an Examiner as disclosing your claimed invention, let’s give it a shot, sport! If the application doesn’t get allowed, don’t ever say I didn’t warn you, and if it does, I’ll be the most celebrated patent attorney in all the land, and receive a coveted invite from Prof. Dennis Crouch to speak at his school (which includes a nominal honorarium, travel expenses, food, and lodging at the best hotel in town (in its finest suite)). Let’s not even get into all the groupies…..
Your invention may or may not be patentable, but if you provide me a retainer in the amount of $_____[fill in boatload of money], I will draft an application for you. While there is no case law yet on …
You write this sarcastically, but this is how the law gets changed/expanded.
Personally, I don’t think that what AI does is inventive or that AI can be an inventive entity, but there will always be instances (in particular with patent law, which by definition involves novel technology) in which the law has not caught up with the technology.
In those instances, a good attorney should do what you described: inform the client of the uncertainty in the law, give them an honest estimate of what it is going to cost, and then let the client make the decision as to whether or not to go forward.
I was going more for satire than sarcasm.
^^^ best answer on the board.
Thank you ipguy.
Questions, on the issue of “letting the cat out of the bag” prior to the PTO filing date, telling the public about your invention even before you tell the PTO about it, which telling might be relevant, at least for those FtF countries without a grace period:
1. Do you file an IDS
2. If so, do you mention Chat GPT.
3. If so, does the admission in that IDS provide evidence that you knowingly made your invention “available” to a member of “the public” on a date earlier than your earliest PTO filing date.
4. Will it make any difference if you state in the IDS that you used Chat GPT as a mere tool to flesh out your innovative concept.
ChatGPT and other Machine Learning applications are tools. The human guides the tool, and a result occurs. The Human is the inventor, not the AI.
So say otherwise, is to say that because a painter used a paint brush, that the painter didn’t paint the painting. The paint brush did.
This is a topic that is occupying too much time but shouldn’t.
Machine Learning is not intelligent. My company develops ML applications, so I’m very familiar with the technology. Neural networks are great at mapping patterns. They don’t understand what they map. The human guiding the results should be responsible for the invention, or the the components derived from the AI are obvious (because the AI recognized a pattern that already exists).
I concur with Kenan’s opinion.
Exactly. Its a tool, just like a pencil, a computer, and everyone who keeps obsessing about whether it can be an inventor.
lol
This question is easy.
Under the only US case law so far, and the current US patent statute, AI programs CANNOT be inventors, only humans can be inventors; so quickly file all the possible applications you can think of with
— your client’s core idea by itself, and
— with the core idea + AI generated info, and
— with AI info alone, if possible. (I don’t see how such AI info alone would make sense without the core idea, but try to file such an application on it alone as well!!)
— and file on any other combinations of information you can think of ….
AND file all applications on the same date and name the human (your client) as the sole inventor on ALL of those applications (that’s all you are currently allowed to do, anyway!).
And as soon as all those applications are published by the PTO (or possibly even sooner!!) expect a ton of filings “close to” or anticipating the core idea plus AI info from many third parties.
Or, if the core idea is a trade secret that can easily be kept secret even after your client’s product arrives on the market, keep that core idea a trade secret forever!! Then to your amazement and horror, you will quickly discover that you were wrong in thinking the trade secret could be kept secret and that an AI program has, all by itself, generated that core idea and everything else you’ve filed on and may even have generated all you have filed on BEFORE you could ever get to the PTO, and even well before your human client woke up and got out of bed. This is a brave new world we now live in!!
“ file on any other combinations of information you can think of”
Based on the unbelievably silly claims that I’ve seen over the past twenty five years, this is pretty much what the “do it on a computer” crowd has been doing forever.
Never the sharpest sticks in the room.
File 3 provisional applications: 1 with Inventor only; 1 with chatGPT only; and 1 with Inventor + chatGPT as joint inventors. During the 1 year waiting period, call every Congressperson and ask to have the statute updated to reflect reality. Then, at the end of the year, proceed with whatever provisional applications are supported by the law at the time.
Interesting approach for a client with a deep pocket. Most clients would balk at all the filing costs.
Maybe most clients would balk but there are companies who file hundreds of nearly identical provisionals on day 1 with the intent of going forward only with the subject matter that “pans out” over the course of the year.
… and that is ultra common “in the grown-up arts,” n’est ce pas?
Ultra-common? No.
What should the patent attorney do?
Perhaps notify the client that they had inadvertently disclosed client confidential information. Notwithstanding anything in the ToS to the contrary (and the ToS are not in this fact pattern) there is no reasonable belief that the search is confidential. (some lawyers at big banks are not permitted to use google for translation, for example).
The information of the attorney’s search is stored as part of ChatGPT’s learning process, meaning it can expose confidential information even if the original copy is deleted.
In addition, as other commentators here have noted, ChatGPT utilizes materials from other sources in its learning process. Some such materials may be subject to copyright, these materials could be prior art, and/or join unnamed inventors. If the attorney were to file the additional subject matter without joining the unnamed inventor, they would be providing a disservice to to the client if they sign a declaration without the unnamed inventor(s).
As another example, should an attorney use a search engine to search an area of the core idea, and discover for themselves additional subject matter, that attorney could be an inventor. While that attorney may simply consider the contribution part of the legal services provided to the client, and disclaim any inventorship consistent with their fiduciary duty. ChatGPT is not in such a position. It runs searches as part of its machine learning algorithm, but cannot disclaim inventorship on behalf of itself or a third-party.
This seems easy. Just as a biotechnology screening variants of a lead compounds by applying it to ‘test’ cells and observing which variant(s) work best, the investigator here has used a ‘tool’ which bears at least some superficial resemblance to a living human being (here the tool “metabolizes” logic like a human instead of “metabolizing” chemicals like a human).
As we all know, “Patentability shall not be negated by the manner in which the invention was made.” 35 USC 103.
Prudent patent attorney acting on behalf of the investigator or investigator’s employer files patent application naming as inventor at least the inventor who employed the ChatGPT tool in the course of making this potentially patentable invention.
The algorithm didn’t “invent” any more than test cells “invent” efficacious chemical variants tested by an investigator.
Sounds like an argument against having AI listed as an inventor. Whether the ideas generated are considered in whole or in part is still completely decided by the human inventor. The unique, novel invention is his alone – whether he picks up parts of the idea by Chatgpt, watching tv or reading a novel.
One of the oddities of this ongoing discussion is that “inventorship” in the US is one the most informal aspects of the law. It’s relatively easy to fix if it’s incorrect and the PTO spends essentially zero time critically evaluating the contributions of each named inventor. What’s most important (from the PTO’s standpoint) is that each inventor’s existence as a human citizen is established.
The only time the identity of the inventor or his/her contributions matters is if there’s been shenanigans trying to get an earlier priority date (to avoid art) or if there is a dispute over ownership/compensation.
With regard to the latter, if we look closely at some of the strangest assertions made by the “machine inventor” crowd, we see what we expect to see: greedy entitled snails trying to grab “rights” to “inventions” that were allegedly “conceived” by “their” machines. It is difficult not to laugh and so … we laugh. And we point and laugh, when necessary.
Your feelings — as muddled as they are — are noted.
By the by, the inventorship aspects are not the only factor arising from the advance of AI, as I have long noted in regards to another non-real-person entity known as the Person Having Ordinary Skill In The Art.
I believe the language in the Constitution that grants to a person rights to her inventions or discoveries covers many of the below concerns. You don’t have to invent anything. You can suddenly (or slowly) recognize (become aware) of the utility of something, and seek a patent thereon. My main concern relates to possible public disclosure creating prior art. Don’t know what goes on with my generative AI sessions. Nor would I know what goes on behind the scenes when I use cloud computing services to complete my research on an invention.
I always figured, if one had to do a patent search then they’re only working incrementally, since, on stronger inventions there is no need to do any search as the inventor(s) are smart enough to know the field and that they’ve got something that’s an advance. Hope nobody throws eggs at me for saying it 🙂 but needing to do a search is a weak reflection on the inventor(s)..knowledge in their own field?….. sometimes. I’ve seen the most “discovery” type patentable subject matter in the nutraceuticals and pharma areas, where it’s discovered that some bark on a tree has a clinical benefit, etc. Have a great day.
Chrissy – fyi: on an earlier thread (diligent searcher) there is a good exchange that may interest you.
Patent search reveals that Inventor’s original idea is not patentable by itself, but it is likely patentable when combined with the chatGPT input.
The problem with this hypo is that it couldn’t exist in the real world, because obvious thing + known technique = obvious thing, not nonobvious thing. Application of a known technique for expected benefits is obvious, see MPEP 2143 and KSR v. Teleflex. I don’t know the most efficient driving route between new york and san francisco, but I do know that if I submit it to google maps it will tell me what that route is. The fact that the result was unknown or even nonobvious *solely over my own knowledge* doesn’t mean the discovery of the route was inventive or that the route is nonobvious, because obviousness extends to a person of ordinary skill using known tools and techniques for their predictable benefits. The discovery of the route was nothing more than an algorithmic tool within the prior art (google maps) applied to an input that it was meant to be applied to (new york, san francisco). Getting an optimal route is the expected result of submitting my input to the algorithm.
Similarly, Chat GPT ran an algorithm that was in public use prior to the effective file – indeed the reason there was alleged invention is because a member of the public used the algorithm in order to get the response. The art was enabled to submit the obvious input and, even though a TSM is not needed a motivation exists to use an improver algorithm to improve something. You can’t have a nonobvious result from using a known technique you were motivated to use, so you can’t have a patentable outcome.
This appears to be an interesting question only because the hypothetical creates something out of nothing – ChatGPT invented out of noninventive input. But using ChatGPT cannot possibly be an inventive act, as ChatGPT is itself a prior art item available to the public. Conversely, if you were to assume a non-public intelligence, it providing an output is no different than the person who wrote the intelligence code providing the output. In other words, if Smith wrote PublicChatGPT, there would be no invention, and if Smith wrote PrivateChatGPT the invention would be Crouch and Smith as inventors just as surely as if Smith created any other tool to help in the development of an invention.
“it providing an output is no different than the person who wrote the intelligence code providing the output.”
People – you are butchering the basics.
If you can’t bother with understanding those basics just use big bold letters saying “THESE ARE MY FEELINGS AND HAVE NO RELATION TO LAW OR FACT.”
RG: “using ChatGPT cannot possibly be an inventive act, as ChatGPT is itself a prior art item available to the public”
With all due respect, RG, this statement has no basis in patent law and, worse, is completely contradictory to hundreds of years of practice.
He has no understanding of obviousness at all.
Gotta say: I can see already that putting these impossibly dense zombies to rest is going to be a repeat of the Diehrbot Wars. It’s going to be a constant game of pretending to be born yesterday, ignoring basic facts, hypotheticals which are ludicrous, and (the worst) hand-wringing about those persecuted computers and their owners who are The Most Important People Ever.
Down below, someone who was on the wrong side of history in the Diehrbot Wars wonders what happens if Person X finds a black box in the street marked “classified/confidential” and opens it to discover a message (let’s say it’s printed using a dot matrix printer, just for laughs). The message says “Chemical Y (identified by its formula) can be used to treat canker sores.” So X goes home and does some research and sees that nobody has ever disclosed this before. X does the research himself and proves that the proposal works. X files a patent and names himself as inventor because he believes he is the first human being to have a fixed and permanent idea of the invention, i.e., he believes he is the first human being to conceive and the first to reduce to practice.
Obviously there may be problems down the road for this inventor **IF** his assumptions and research were flawed but if no humanon earth ever steps up to claim ownership of the black box, what exactly is the problem here? The invention is disclosed to the public and progress is promoted (theoretically) and X gets his reward (a patent) for moving that process forward.
The sad part about all this focus on “my compooter invented that!” is it obscures the fact that 99.99% of the info that computers create is unpatentable crud, and 99.99% of what’s left after that is stuff that should be ineligible. On top of that, the more salient issue (which is far older) is that computers pumping out half-baked information to the public will tend to inhibit patenting across the board by creating prior art. Folks in the logic arts (the lost predictable of all arts) better prepare themselves.