Artificial Intelligence (AI) is expected to dramatically transform society and increase global domestic product by $15.7 trillion, a full 14%, by 2030.”1 As one can imagine, with the proliferation of AI comes the potential for a significant impact on intellectual property rights.
AI has recently come into vogue through “chatbots” such as:
- The New Bing
- Google's Bard
- China's Baidu
These platforms use generative artificial intelligence algorithms,2 trained using a Large Language Model3 to analyze vast amounts of data to generate new content in natural language.
Given its ability to generate new content, one might wonder whether a chatbot may be deemed an inventor in a patent application. Some believe that AI is worthy of a role as a sole inventor or co-inventor. However, courts in the United States and abroad have yet to recognize AI in an inventive capacity. In Thaler v. Vidal, No. 21-2347 (Fed. Cir. 2022), the United States Court of Appeals for the Federal Circuit has held that “the Patent Act requires an inventor to be a natural person.”
Nevertheless, AI may be used as a tool to achieve an invention. That use may also come with a few caveats:
The first is that chatbots have been known to “hallucinate,” a term used to describe wrong information generated by a chatbot.
The second is, because of such hallucinations, chatbot answers should be thoroughly vetted for accuracy.
Why chatbots may hallucinate is only partially understood. Some have analogized chatbot responses to sophisticated examples of a word-processing autocorrect function. We've all witnessed both the benefits and detriments of autocorrection. Despite a possible hallucinogenic moment, chatbot information can still be beneficial.
New Bing Example
Query: How do you prevent lithium-ion batteries from exploding?
Answer: Lithium-ion batteries can be dangerous if not handled properly. Here are some tips to prevent them from exploding:
- Install sprinkler protection.
- Store at the correct temperature.
- Don't store fully-charged batteries for long periods.
- Charge lithium-ion batteries in a safe area.
- Cover battery terminals before disposing of batteries.
- Place battery bins at least 10 feet from other storage areas.
- Use metal bins for batteries.
- Never use potentially damaged batteries.
- Additionally, lithium-ion batteries can explode if they are kept in a pocket or handbag and they bump into coins or keys. Keep your batteries away from metal and other batteries.
The above response, on its face, appears to provide helpful information. However, tip 6 could be construed as not being true. Where batteries are stored does not address battery explosion, and the 10-foot distance would require some qualification depending on the battery. For instance, after a significant flood in Florida last year, rental car companies were parking their electric vehicles, which had been flooded by saltwater, at least 50 feet from any buildings, combustible material, or other vehicles because of the lithium-ion batteries' tendency to ignite fires when exposed to saltwater.
Further, tips 7 and 9 are at odds with one another. On the one hand, the advice is to place batteries in metal bins; on the other, the recommendation is to keep batteries away from metal. The response above may be inaccurate or require more detailed queries to elicit the information sought.
The current legal framework regarding AI represents a significant opportunity for inventors as AI can generate many inventive permutations and combinations based on queries. For example, AI chatbots may be useful when conducting prior art searches as a part of determining whether an idea is novel.
- Prior art searches can be beneficial in that they can help determine whether an idea is novel. Novelty is one of the requirements for the patentability of an invention.
- Chatbot queries can provide an excellent first step in determining whether an idea is novel. Once a patent application is filed, typically, responses must be submitted in reply to a government patent office letter, referred to as an Office Action, that may reject patent claims based on one or more documents in the public domain (i.e., “prior art”).
- Chatbot responses to the proper queries may also provide a basis to distinguish the references used to reject patent claims.
How Gallium Law Can Help
While an AI-generated result may present issues of accuracy, practicality, and cost feasibility, we at Gallium Law can help by designing queries for AI chatbot platforms and assist you in separating the “wheat from the chaff” to produce a viable concept, solution, or product to patent. Given our patent and technical expertise, we can vet chatbot responses in a manner that corrects those responses to make them more accurate for the intended use. Contact us today by filling out this online form or calling us at 651-256-9480 to schedule a Free and Confidential Consultation.
*The information provided in this article is not legal advice and should not be relied on as such. The content of this article is for informational purposes only and is meant as a starting point in your search for answers to your legal questions.
- PriceWaterhouseCoopers, “Sizing the Prize: What's the Real Value of AI for Your Business and How Can You Capitalise?” 2017
- George Lawton, What is Generative AI? Everything you need to know, https://www.techtarget.com/searchenterpriseai/definition/generative-AI May 2023
- Peter Foy, What is a Large Language Model (LLM)? https://www.miq.ai/what-is-a-large-language-model-llm/ 2022.