Jump to content

Should AI-generated images be copyrightable?


Horn of Gabriel

Recommended Posts

Another twist on this is AI-generated prior art in the examination of patents.  "Prior art" means basically anything public/available to the public (even if in an obscure location) that documents the state of a technology.  Patent applications (more accurately the claims contained therein) are compared to this prior art to evaluate the patentability of the claims/invention claimed in the patent application.

The USPTO has sought comment on such prior art generated by AI.  https://patentlyo.com/patent/2024/04/discerning-navigating-generated.html

We know that the language of the Patent Act requires human inventors, so AI-alone inventions cannot be patented unless Congress changes the law (the Copyright Act doesn't have the same language, so the limitation to human-created material is constitutional in origin, so Congress' action may not solve any problem).

But normally, not too many questions are asked about the source or origin of prior art:  as long as it is proven to be publicly accessible prior to the patent application/invention date and describes something "operable," it is effective prior art in most cases.  Noone cares who "invented" the prior art and, other than patents and technical papers, is often anonymous (instruction or product manuals, for example).

The worry here would seem to be AI's propensity for generating things that are entirely or partly fictitious, or at least speculative.  In other words, bullshit.  Should bullshit be prior art that can render an invention unpatentable?

The solution may be built-in to the patent law, as it often is.  As mentioned, prior art must describe or disclose something that is "operable," meaning is or could easily be adapted to be a functional widget or whatever it is.  It must also be "enabled," meaning described in sufficient detail that one ordinarily skilled in the art can "make" it.  That might disqualify some of the real bullshit AI-generated prior art.

In a similar vein, I was defending a patent relating to employing GPS to locate oneself on a golf course relative to the pin, tee box, etc.  The inventor was a USAF captain that had had some responsibility for GPS and for making it publicly available, so he had kind of insider  knowledge of the coming availability of the tech and envisioned the golf-course application.  

The examiner found a piece of prior art that was an advertisement for Trimble's LORAN-C navigation equipment that said it "gets you closer to the pin" and used a golf ball on a green as a graphic.  So, that was an example of speculative, bullshit prior art that didn't describe something operable or enable it.  The argument was that it suggested use of a navigation technology on a golf course and that substitution of GPS for LORAN-C was obvious.  Nevertheless, we kept the patent.  I think everyone was a little uncomfortable taking a fantastical, speculative advertisement as actual prior art.

Link to comment
Share on other sites

Join the conversation

You can post now and register later. If you have an account, sign in now to post with your account.

Guest
Reply to this topic...

×   Pasted as rich text.   Paste as plain text instead

  Only 75 emoji are allowed.

×   Your link has been automatically embedded.   Display as a link instead

×   Your previous content has been restored.   Clear editor

×   You cannot paste images directly. Upload or insert images from URL.



×
×
  • Create New...