PatentNext Summary: In August 2022, the Federal Circuit in Thaler v. Vidal held that U.S. patent law requires a “human” inventor. In 1884, the U.S. Supreme Court in Burrow-Giles Lithographic Co. v. Sarony held that a human could be the “author” of a photograph. In both cases, a type of “machine” was used to produce an output. Namely, in Thaler a “creativity machine” (a type of Artificial Intelligence (AI)) output and conceived the subject matter of a patent application allegedly without human involvement. In Burrow-Giles a camera output (captured) a photograph, but with human involvement (i.e., the photographer selected and arranged the scene of the photograph). While the Thaler court found that a machine alone cannot be an inventor, it raised the possibility of AI-assisted inventorship that included human involvement (e.g., sole or joint inventorship). Future courts considering the issue of AI inventorship could find the 1884 case of Burrow-Giles instructive, where the photographer’s selection and arrangement for the scene of a photograph in 1884 provides a useful analogy to a modern-day human AI developer’s selection and arrangement of training data, hyperparameters, or other features typically required to train and/or use an AI model.
Continue Reading The Curious Case of Burrow-Giles Lithographic (an 1884 U.S. Supreme Court decision involving “new” camera technology), and how it could help Shape Today’s Thinking on Artificial Intelligence (AI) Inventorship

PatentNext Takeaway: The concept of the “Metaverse,” while decades old, is just starting to gain traction today. Early efforts to establish the Metaverse came from the video game industry. That is, as video games have become more modern, they are increasingly designed to have interactive virtual worlds, which is a hallmark of the Metaverse. Because of this, we can expect the U.S. Patent and Trademark Office (USPTO) and courts to look to prior art and previous cases involving video game technology to decide Metaverse-related issues in the future. For the same reason, we can also use best practices for patenting software-related technologies (upon which video game technology relies) to prepare Metaverse-related patents.

Continue Reading Exploring the Metaverse and Patent-related topics