I’m increasingly inclined to think that there should be some regulatory oversight, maybe at the national and international level, just to make sure that we don’t do something very foolish. I mean with artificial intelligence we’re summoning the demon. – Elon Musk
In light of the quote above, the thought of demonic robot trolls may scare people into not reading the rest of this article as “ignorance is bliss”. However, it is not the fantastical, cave-dwelling version of a troll that this article sets out to discuss, but rather it is the familiar, to some “cave-dwelling”, non-practicing entity (NPE) that the patent community has come to know as a patent troll.
Although this introduction of NPEs may seem harsh, and I do not mean to offend anyone by it, NPEs have become such a frustration to other companies that the title has stuck. In fact, a study has shown that about two-thirds of all patent lawsuits in 2015 were filed by NPEs.[1] Furthermore, NPEs have become such a burden for businesses, the Supreme Court of the United States was inclined to step in and attempt to reduce the strength of NPEs.[2]
However, I would suggest that the issues surrounding NPEs and the magnitude of their burden may only be at an infant stage. When one considers the potential of artificial intelligence (AI) and the role it might play as an inventor, one may begin to realize why future NPEs could be far more obstructive than current ones.
For example, we can consider “Chef” IBM Watson to help us understand why we could be staring in the face of an NPE crisis. In 2014, IBM researchers teamed up with the Institute of Culinary Education in New York to use AI to create new recipes.[3] The idea behind this experiment was that Watson could determine novel food parings and recipes as it is capable of processing every possible combination of food whereas chefs have limited creativity and time. The researchers at IBM were correct and Chef IMB Watson was able to create new dishes, for example, Swiss-Thai asparagus quiche and Australian chocolate burritos.[4] These dishes being just two of what researchers think will be millions of more ideas that Watson will discover.[5]
Knowing that recipes are patentable subject matter, I hope that the issues that AI in combination with a NPE could cause are becoming clear.[6] If a NPE could obtain a program such as Watson, they could potentially be in possession of millions of patents to licence or litigate. Moreover, the entity does not need to be a NPE for this to be an issue; if AI is creating millions of “recipes,” there would necessarily be patented, or at least patentable, subject matter not being used by the practicing business.
This conclusion does however beg the question: “would the NPE be entitled to the patents generated by the inventive content created by the AI?” A question which has not yet been answered by the courts or through legislation. Although some have suggested that “a computer’s owner should be the default assignee of any invention”, this finding was not made with regards to an artificially intelligent empowered NPE.[7]
Therefore, I cannot say that “a computer’s owner should be the default assignee of an invention” or that this opinion is wrong in light of the concerns raised above. However, I can echo the quote above and say that, when it comes to AI, there needs to be regulatory oversight. In other words, NPEs are already negatively affecting the economy and innovation, and if you do not want to imagine a future where NPEs are armed with artificially intelligent patent generators, we will need new and proper regulation.
Denver Bandstra is a JD Candidate at Osgoode Hall Law School and was enrolled in Osgoode’s Intellectual Property Law Intensive Program. As part of the program requirements, students were asked to write a blog on a topic of their choice.
[1] Joe Mullin, “Patent troll lawsuits head toward all-time high” Ars Technica (7 October 2015) online: <https://arstechnica.com/tech-policy/2015/07/patent-troll-lawsuits-head-towards-all-time-high/>.
[2] The Supreme Court of the United States ruled in TC Heartland that that a patent infringement case must be brought where the infringement occurred and not necessarily in the Eastern District of Texas. TC Heartland LLC v Kraft foods Group Brands LLC, 581 US __ (2017); Mike Montgomery “SCOTUS Smacks Down Patent Trolls” Forbes (2 June 2017) online: <https://www.forbes.com/sites/mikemontgomery/2017/06/02/scotus-smack-down-patent-trolls/#6215dc75ae4b>.
[3] Maanvi Singh, “Our Supercomputer Overlord Is Now Running A Food Truck” National Public Radio (4 March 2014) online: <http://www.npr.org/sections/thesalt/2014/03/03/285326611/our-supercomputer-overlord-is-now-running-a-food-truck>.
[4] Ibid.
[5] Ibid.
[6] Larry Tarazano, “Can Recipes Be Patented?” Inventors Eye (June 2013) online: < https://www.uspto.gov/custom-page/inventors-eye-advice-1>.
[7] Ryan Abbott, “I Think, Therefore I Invent: Creative Computers and the Future of Patent Law” 57 BLC Rev 1079 (September 2016) at 2.
