Artificial Intelligence (AI)

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In its August 5, 2022 affirmance of the district court’s grant of summary judgment, the Federal Circuit in Thaler v. Vidal ruled that the Patent Act unambiguously and directly answers the question of whether an AI software system can be listed as the inventor on a patent application. Since an inventor must be a human being, AI cannot be.

Judge Stark’s first authored precedential opinion since confirmation to the Federal Circuit aligns the U.S. position on whether AI can be listed as an inventor on a patent application with that of other major jurisdictions. Left for another day are questions such as the rights, if any, of AI systems, and whether AI systems can contribute to the conception of an invention.

PTO and Litigation Background of the DABUS Patent Applications

In July 2019, two patent applications were filed in the United States Patent and Trademark Office (PTO) that identified an AI system called DABUS (Device for the Autonomous Bootstrapping of Unified Sentience) as the sole inventor and Stephen L. Thaler as the Applicant and Assignee. DABUS, which was characterized as “a particular type of connectionist artificial intelligence” known as a “Creativity Machine” during prosecution and as “a collection of source code or programming and a software program” before the U.S. District Court for the Eastern District of Virginia, allegedly generated the subject matter of the two patent applications.

The filed patent applications specifically stated that the inventions were conceived by DABUS, and that DABUS should accordingly be named as the inventor. The PTO subsequently issued Notices stating that the applications did not identify each inventor by his or her legal name. In response to filed Petitions requesting that the PTO vacate the issued Notices, the PTO issued Petition Decisions refusing to vacate, explaining that a machine does not qualify as an inventor under the patent laws, and providing additional time to identify inventors by their legal name to avoid abandonment of the applications.

Thaler then sought judicial review under the Administrative Procedure Act in the Eastern District of Virginia, requesting an order compelling the PTO to reinstate the DABUS patent applications, and a declaration that a patent application for an AI-generated invention should not be rejected on the basis that no natural person is identified as an inventor. After briefing and oral argument, the district court issued an order denying Thaler’s requested relief and granting the PTO’s motion for summary judgment, recognizing the Federal Circuit’s consistent holdings under current patent law requiring inventors to be natural persons.…

Continue Reading Federal Circuit Rules That Under The Patent Act An Inventor Must Be Human: So What Can Be Done To Patent AI Inventions?

Policymakers and candidates of both parties have increased their focus on how technology is changing society, including by blaming platforms and other participants in the tech ecosystem for a range of social ills even while recognizing them as significant contributors to U.S. economic success globally.  Republicans and Democrats have significant interparty—and intraparty—differences in the form of their grievances and on many of the remedial measures to combat the purported harms.  Nonetheless, the growing inclination to do more on tech has apparently driven one key congressional committee to have compromised on previously intractable issues involving data privacy.  Rules around the use of algorithms and artificial intelligence, which have attracted numerous legislative proposals in recent years, may be the next area of convergence. …

Continue Reading Artificial Intelligence and Algorithms in the Next Congress

On July 5, 2022, the Cybersecurity and Infrastructure Security Agency (“CISA”) and the National Institute of Standards and Technology (“NIST”) strongly recommended that organizations begin preparing to transition to a post-quantum cryptographic standard.  “The term ‘post-quantum cryptography’ is often referred to as ‘quantum-resistant cryptography’ and includes, ‘cryptographic algorithms or methods that are assessed not to be specifically vulnerable to attack by” a CRQC (cryptanalytically relevant quantum computer) or a classical computer.  NIST “has announced that a new post-quantum cryptographic standard will replace current public-key cryptography, which is vulnerable to quantum-based attacks.”  NIST does not intend to publish the new post-quantum cryptographic standard for commercial products until 2024 but urges companies to begin preparing now by following the Post-Quantum Cryptography Roadmap. …

Continue Reading CISA and NIST Urge Companies to Prepare to Transition to a Post-Quantum Cryptographic Standard

This quarterly update summarizes key federal legislative and regulatory developments in the second quarter of 2022 related to artificial intelligence (“AI”), the Internet of Things, connected and automated vehicles (“CAVs”), and data privacy, and highlights a few particularly notable developments in U.S. state legislatures.  To summarize, in the second quarter of 2022, Congress and the Administration focused on addressing algorithmic bias and other AI-related risks and introduced a bipartisan federal privacy bill.…

Continue Reading U.S. AI, IoT, CAV, and Data Privacy Legislative and Regulatory Update – Second Quarter 2022

On June 3, the New York State legislature passed their version of a right to repair bill—titled the “Digital Fair Repair Act”—that would allow consumers to repair their digital electronic equipment without involving the manufacturer.…

Continue Reading Right to Repair: New York State Passes Right to Repair Law

Facial recognition technology (“FRT”) has attracted a fair amount of attention over the years, including in the EU (e.g., see our posts on the European Parliament vote and CNIL guidance), the UK (e.g., ICO opinion and High Court decision) and the U.S. (e.g., Washington state and NTIA guidelines). This post summarizes two recent developments in this space: (i) the UK Information Commissioner’s Office (“ICO”)’s announcement of a £7.5-million fine and enforcement notice against Clearview AI (“Clearview”), and (ii) the EDPB’s release of draft guidelines on the use of FRT in law enforcement.…

Continue Reading Facial Recognition Update: UK ICO Fines Clearview AI £7.5m & EDPB Adopts Draft Guidelines on Use of FRT by Law Enforcement

            On April 28, 2022, Covington convened experts across our practice groups for the Covington Robotics Forum, which explored recent developments and forecasts relevant to industries affected by robotics.  Sam Jungyun Choi, Associate in Covington’s Technology Regulatory Group, and Anna Oberschelp, Associate in Covington’s Data Privacy & Cybersecurity Practice Group, discussed global regulatory trends that…

            On April 28, 2022, Covington convened experts across our practice groups for the Covington Robotics Forum, which explored recent developments and forecasts relevant to industries affected by robotics.  One segment of the Robotics Forum covered risks of automation and AI, highlights of which are captured here.  A full recording of the Robotics Forum is available…

            On April 28, 2022, Covington convened experts across our practice groups for the Covington Robotics Forum, which explored recent developments and forecasts relevant to industries affected by robotics.  The global robotics market has been experiencing a significant transformation, with robotics growing beyond traditional industrial uses and taking on an ever-increasing amount of new roles…