Patent Application Status

Appeal Pending

United StatesCase No. 1:20-cv-00903 (United States District Court, Eastern District of Virginia)
United KingdomCourt of Appeal – Case No. A2/2020/1851/PTA
High Court Opinion: Thaler v The Comptroller-General of Patents, Designs And Trade Marks [2020] EWHC 2412 (Pat) (21 September 2020)
EuropeEP3564144 (Food Container)
EP3563896 (Neural Flame)
Germany18 W (pat) 28/20 (Neural Flame)
12 W (pat) 21/20 (Food Container)
AustraliaCase Pending
AU 2019363177


CountryCaseApplication No.Application DatePublication No.Publication Date
European Patent OfficeFractal containerEP 18275163.6; European Patent Office (EPO) grounds for refusal: In Re EP 18 275 163 / In Re 18 275 174 17.10.2018EP 3 564 144 A106/11/2009
GermanyFractal containerDE 10 2019 128 10 2019 128 120 A123/04/2020
United KingdomFractal containerGB 1816909.4;  UK Intellectual Property Office (UKIPO) decision not to grant: In Re GB1816909.4 / GB1818161.017.10.2018GB 2574909 A25/12/2019
World Intellectual Property Organisation (WIPO)Fractal containerPCT / IB2019 / 05780917.09.2019WO 2020/079499 A123/04/2020
IsraelFractal container26860508.08.2019  
TaiwanFractal containerTW 10813743817.10.2019  
United StatesFractal containerUS 16/524,53229.07.2019  
IndiaFractal containerIN 202017019068 (FC/NF case)17.09.2019  
JapanFractal containerJP 11000151917.09.2019  
GermanyNeural FlameDE 10 2019 129 136.429.10.2019  
European Patent OfficeNeural FlameEP 18275174.307.11.2018EP 3 563 896 A106/11/2019
United KingdomNeural FlameGB 1818161.007.11.2018GB 2575131 A01/01/2020
IsraelNeural Flame26860408.08.2019  
TaiwanNeural FlameTW 10814013305.11.2019  
United StatesNeural FlameIn Re: 16/524,350 29.07.2019  
PCTFractal container/Natural FlamePCT/IB2019/057809; Publication number:  WO 2020/079499 A1 (Combined Applications) 17.09.2019
IndiaFractal container/Natural FlameIN 20201701906805.05.2020
ChinaFractal container/Natural FlameCN 201980006158017.09.2019
Republic of KoreaFractal container/Natural FlameKR 10-2020-700739417.09.2019

Fractal Container Abstracts

A container for use, for example, for beverages, has a wall with and external surface and an internal wall of substantially uniform thickness. The wall has a fractal profile which provides a series of fractal elements on the interior and exterior surfaces, forming pits and bulges in the profile of the wall and in which a pit as seen from one of the exterior or interior surfaces forms a bulge on the other of the exterior or interior surfaces. The profile enables multiple containers to be coupled together by inter-engagement of pits and bulges on corresponding ones of the containers. The profile also improves grip, as well as heat transfer into and out of the container.

Neural Flame Abstracts

The present invention discloses devices and methods for attracting enhanced attention. Devices include: an input signal of a lacunar pulse train having characteristics of a pulse frequency of approximately four Hertz and a pulse-train fractal dimension of approximately one-half; and at least one controllable light source configured to be pulsatingly operated by the input signal; wherein a neural flame emitted from at least one controllable light source as a result of the lacunar pulse train is adapted to serve as a uniquely-identifiable signal beacon over potentially-competing attention sources by selectively triggering human or artificial anomaly-detection filters, thereby attracting enhanced attention.

Arguments with Respect to Patentability

A machine architecture called “DABUS” conceived of the instant inventions.

The inventions described in these patent applications were generated by a specific machine design called “DABUS” – a type of “Creativity Machine.” A Creativity Machine is a particular type of connectionist artificial intelligence. Such systems contain a first artificial neural network, made up of a series of smaller neural networks, that has been trained with general information from various knowledge domains. This first network generates novel ideas in response to self-perturbations of connection weights between neurons and component neural nets therein. A second “critic” artificial neural network monitors the first neural network for new ideas, and identifies those ideas that are sufficiently novel compared to the machine’s pre-existing knowledge base. The critic net also generates an effective response that in turn injects/retracts perturbations to selectively form and ripen ideas having the most novelty, utility, or value.

In the case of the instant inventions, the machine only received training in general knowledge in the field, and proceeded to independently conceive of the invention, and to identify it as novel and salient. If similar training had been given to a human student, the student rather than the trainer would meet the inventorship criteria as inventor.

In some instance of machine invention, a natural person might qualify as an inventor by virtue of having exhibited inventive skill in developing a program to solve a particular problem, by skillfully selecting data to provide to a machine, or by identifying the output of a machine as inventive. However, in the present case, the DABUS was not created to solve any particular problem, nor was trained on any special data relevant to the instant invention. The machine rather than a person identified the novelty and salience of the instant invention.

A detailed description of how a DABUS and a Creativity Machine functions is available in, among others, the following US patent publications: 5,659,666; 7,454,388 B2; and 2015/0379394 A1.

Inventorship should not be restricted to natural persons. A machine that would meet inventorship criteria if it were a natural person should also qualify as an inventor.

No United States law explicitly prohibits protection for autonomous machine inventions.

However, inventorship is restricted to “individuals” under, e.g., 35 U.S.C. §100(f) (1952) (“The term ‘inventor’ means the individual or, if a joint invention, the individuals collectively who invented or discovered the subject matter of the invention.”).

The restriction of inventorship to individuals was intended to prevent corporate inventorship. It was not the result of seriously considering autonomous machine invention, and should not therefore prohibit subsistence of intellectual property rights where there is no natural person who qualifies as an inventor. See Karl F. Milde, Jr., Can a Computer Be an “Author” or an “Inventor”?, 51 J. PAT. OFF. SOC’Y 378, 379 (1969). (“The closest that the Patent Statute comes to requiring that a patentee be an actual person is in the use, in Section 101, of the term ‘whoever.’ Here too, it is clear from the absence of any further qualifying statements that the Congress, in considering the statute in 1952, simply overlooked the possibility that a machine could ever become an inventor.”)

The output of autonomously inventive machines should be patentable if it meets the requirements of patentability set out in law. The primary purpose of patent law is to incentivize innovation, together with incentivizing the disclosure of information, and the commercialization and development of inventions. Allowing patents for machine output incentivizes the development of inventive machines, which ultimately promotes innovation. To the extent that patents are incentivizing commercialization and disclosure of information, there is no change in this function between a human and a machine-generated invention. Failure to permit patent protection for the output of autonomously inventive machines threatens to undermine the patent system by failing to encourage the production of socially valuable inventions. This will be particularly important as artificial intelligence becomes more sophisticated and likely a standard part of future industrial research and development. Clarifying now that patents are available for the output of autonomously inventive machines would provide certainty to businesses and innovators.

Patent law also protects the moral rights of human inventors; acknowledging machines as inventors would facilitate this function. At present, individuals are claiming inventorship of autonomous machine inventions under circumstances in which those persons have not functioned as inventors. See Ryan Abbott, I Think, Therefore I Invent: Creative Computers and the Future of Patent Law, 54 B. C. L. Rev. 1079-1126 (2016). Failing to appropriately acknowledge inventive activity by machines weakens moral justifications for patents by allowing individuals to take credit for work they have not done. It is not unfair to machines who have no interest in being acknowledged, but it is unfair to other human inventors because it devalues their accomplishments by altering and diminishing the meaning of inventorship. This could equate the hard work of creative geniuses with those simply asking a machine to solve a problem or submitting a machine’s output. By contrast, acknowledging machines as inventors would also acknowledge the work of a machine’s creators.

An “autonomous machine invention” should be assigned to the owner of the machine.

Machines should not own patents. They do not have legal personality or independent rights, and cannot own property.

The machine’s owner should be the default owner of any intellectual property it produces and any benefits that would otherwise subsist in an inventor who is a natural person. This is most consistent with current ownership norms surrounding personal property (including both machines and patents).

In the instant application, we submit that DABUS should be acknowledged as the inventor of any resultant patents, with the machine’s owner as the applicant and assignee of any such patents.

The machine’s owner is prevented from listing himself as the inventor for the instant application.

The creator of DABUS is prohibited from listing himself as an inventor for the instant application because he has not contributed to the conception of the instant invention. DABUS performed what is traditionally considered the mental part of the inventive act. Based on DABUS’s results, a skilled person could have reduced the invention to practice. Inaccurately listing himself as an inventor could subject him to criminal sanctions. 18 U.S.C. 1001.

The Office presumes that the named inventor in an application is the actual inventor. See MPEP §2137.01.

If a machine cannot be an inventor, the first person to recognize the inventive nature of autonomous machine input may qualify as an inventor.

It has been argued that a natural person may claim inventorship of an autonomous machine invention even in situations in which that person was not involved in the development or operation of a machine by virtue of recognizing the relevance of a machine’s output. This approach is questionable in cases in which the natural person has not made an inventive contribution to the disclosed invention in the accepted meaning of the term.

In some cases, recognition of the inventive nature of a computer’s output may require significant skill, but in others, the nature of inventive output may be obvious. In the present case, DABUS identified the novelty of its own idea before a natural person did.