Legal Personhood for Artificial Intelligences

They kept hooking hardware into him – decision-action boxes to let him boss other computers, bank on bank of additional memories, more banks of associational neural nets,’ another tubful of twelve-digit random numbers, a greatly augmented temporary memory. Human brain has around ten-to-tenth neurons. By third year Mike has better than one and a half times that number of neuristors. And woke up.

― The Moon is a Harsh Mistress, Robert A. Heinlein

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Following Google I/O, Google's annual developer conference, where the company revealed the roadmap for highly-intelligent conversational AI and a bot-powered platform, as artificial intelligence disrupts how we live our lives, redefining how we would interact with present and future technology tools by automating things in a new way, it is inevitable we all have to imbibe the automated life gospel. One of the steps into that life is trying to unify the scope of the current technological advancements into a coherent framework of thought by exploring how current law applies to different sets of legal rights regarding artificial intelligence.

Artificial intelligence may generally be defined as the intelligence possessed by machines or software used to operate machines. It also encompasses the academic field of study that is more widely known as computer science. The basic premise of this field of study is that scientists can engineer intelligent agents that are capable of making accurate perceptions concerning their environment. These agents are then able to make correct actions based on these perceptions. The discipline of artificial intelligence explores the possibility of passing on traits that human beings possess as intelligent beings. These include knowledge, reasoning, the ability to learn and plan, perception, movement of objects and communication using language. As an academic field, it may be described as being interdisciplinary, as it combines sciences such as mathematics, computer science, and neuroscience as well as professional studies such as linguistics, psychology and philosophy. Professionals involved in the development of artificial intelligence use different tools to get machines to simulate characteristics of intelligence only found in humans.

But artificial intelligence only follows the lead of the already omnipresent challenges and changes to the existing legal frameworks. The twenty first century is undoubtedly the age of information and technology. Exciting scientific breakthroughs continue to be experienced as innovators work to create better, more intelligent and energy efficient machines. Rapid information technology development has posed challenges to several areas of law both domestically and internationally. Many of these challenges have been discussed at length and continue to be addressed through reforms of existing laws.

The trend towards reform of law to keep up with the growth of technology can also be illustrated by observing the use of social media to generate content. As social media has continued to grow and influence the world, international media law has recognized citizen journalism. The traditional role of journalists has been to generate and disseminate information. As the world’s population has gained increased access to smart devices, ordinary people have been able to capture breaking stories that are then uploaded to the internet through several platforms. This has eroded the sharp distinction that previously existed between professional journalists and ordinary citizens, as the internet provides alternatives to traditional news media sources.

There are innumerable examples of other ways in which information technology has caused changes in the existing legislative structures. The law is naturally elastic, and can be expanded or amended to adapt to the new circumstances created by technological advancement. The continued development of artificial intelligence, however, may challenge the expansive character of the law because it presents an entirely novel situation. To begin with, artificial intelligence raises philosophical questions concerning the nature of the minds of human beings. These philosophical questions are connected to legal and ethical issues of creating machines that are programmed to possess the qualities that are innate and unique to human beings. If machines can be built to behave like humans, then they must be accorded some form of legal personality, similar to that which humans have. At the very least, the law must make provision for the changes that advanced artificial intelligence will cause in the society through the introduction of a new species capable of rational, logical thought. By deriving general guidelines based on the case law of the past, it should aid the lawmakers to close the gap on technological singularity.

Legal personality endows its subjects with the capacity to have rights and obligations before the law. Without legal personality, there is no legal standing to conduct any binding transactions both domestically and internationally. Legal personality is divided into two categories. Human beings are regarded as natural or physical persons. The second category encompasses non-living legal subjects who are artificial but nonetheless treated as persons by the law. This is a fundamental concept in corporate law and international law. Corporations, states and international legal organizations are treated as persons before the law and are known as juridical persons. Without legal personality, there can be no basis upon which legal rights and duties can be established.

Natural persons have a wide array of rights that are recognized and protected by law. Civil and political rights protect an individual’s freedoms to self-expression, assemble, information, own property and self-determination. Social and economic rights acknowledge the individual’s fundamental needs to lead a dignified and productive life. These include the right to education, healthcare, adequate food, decent housing and shelter. As artificial intelligence continues to develop, and smarter machines are produced, it may be necessary to grant these machines legal personality.

This may seem like far-fetched scientific fiction, but it is in fact closer to reality than the general population is aware of. Computer scientists are at the frontline of designing cutting edge software and advanced robots that could revolutionize the way human live. Just like Turing’s machine was able to accomplish feats that were impossible for human mathematicians, scientists, and cryptologists, during World War II, the robots of the future will be able to think and act autonomously. Similarly, the positive implications of increased capacity to produce artificial intelligence, is the development of powerful machines. These machines could solve many of the problems that continue to hinder human progress such as disease, hunger, adverse weather and aging. The science of artificial intelligence would make it possible to program these machines to provide solutions to human problems, and their superior abilities would make it possible to find these solutions within a short period of time instead of decades or centuries.

The current legal framework does not provide an underlying definition of what determines whether a certain entity acquires legal rights. The philosophical approach does not yet distinguish between strong and weak forms of artificial intelligence.

Weak artificial intelligence merely facilitates a tool for enhancing human technological abilities. A running application comprising artificial intelligence aspects, such as Siri, represents only a simulation of a cognitive process but does not constitute a cognitive process itself. Strong artificial intelligence, on the other hand, suggests that a software application in principle can be designed to become aware of itself, become intelligent, understand, have perception of the world, and present cognitive states that are associated with the human mind.

The prospects for the development and use of artificial intelligence are exciting, but this narrative would be incomplete without making mention of the possible dangers as well. Humans may retain some level of remote control but the possibility that these created objects could rise up to positions of dominance over human beings is certainly a great concern. With the use of machines and the continual improvement of existing technology, some scientists are convinced that it is only a matter of time before artificial intelligence surpasses that of human intelligence.

Secondly, ethicists and philosophers have questioned whether it is sound to pass on innate characteristics of human beings on to machines if this could ultimately mean that the human race will become subject to these machines. Perhaps increased use of artificial intelligence to produce machines may dehumanize society, as functions that were previously carried out in the society become mechanized. In the past mechanization has resulted in loss of jobs as manpower is no longer required when machines can do the work. Reflections on history reveal that machines have assisted humans to make work easier, but it has not been possible to achieve an idyllic existence simply because machines exist.

Lastly, if this advanced software should fall into the hands of criminals, terrorist organizations or states that are set against peace and non-violence, the consequences would be dire. Criminal organizations could expand dangerous networks across the world using technological tools. Machines could be trained to kill or maim victims. Criminals could remotely control machines to commit crimes in different geographical areas. Software could be programmed to steal sensitive private information and incentivize corporate espionage.

The "singularity” is a term that was first coined by Vernor Vinge to describe a theoretical situation where machines created by humans develop superior intelligence and end the era of human dominance that would be as intelligent or more intelligent that human mind, using the exponential growth of computing power, based on the law of accelerating returns, combined with human understanding of the complexity of the brain.

As highlighted earlier, strong artificial intelligence that matches or surpasses human intelligence has not yet been developed, although its development has been envisioned. Strong artificial intelligence is a prominent theme in many science fiction movies probably because the notion of a super computer with the ability to outsmart humans is very interesting. In the meantime, before this science fiction dream can become a reality, weak artificial intelligence has slowly become a commonplace part of everyday life. Search engines and smart phone apps are the most common examples of weak artificial intelligence. These programs are simply designed and possess the ability to mimic simple aspects of human intelligence. Google is able to search for information on the web using key words or phrases inserted in by the user. The scenario of dominance by artificial intelligence seems a long way off from the current status quo. However, the launch of chatbots points towards the direction artificial intelligence will take in the near future using weak artificial intelligence.

Chatbots are the next link in the evolution chain of virtual personal assistants, such as Siri. Siri is the shortened version of the Scandinavian name Sigrid which means beauty or victory. It is a virtual personal assistant that is able to mimic human elements of interaction as it carries out its duties. The program is enabled with a speech function that enables it to reply to queries as well as take audio instructions. This is impressive as it does not require the user to type instructions. Siri is able to decode a verbal message, understand the instructions given and act on these instructions. Siri is able to provide information when requested to do so. It can also send text messages, organize personal schedules, book appointments and take note of important meetings on behalf of its user. Another impressive feature of the program is its ability to collect information about the user. As the user gives more instructions Siri stores this information and uses it to refine the services it offers to the user. The excitement that has greeted the successful launch of Siri within the mass market is imaginable. After Siri, came the chatbots. Chatbots are a type of conversational agent, a software designed to simulate an intelligent conversation with one or more human users via auditory or textual methods. The technology may be considered as weak artificial intelligence, but the abilities demonstrated by the program offer a glimpse into what the future holds for artificial intelligence development. For legal regulators virtual personal assistants' features demand that existing structures be reviewed to accommodate the novel circumstances that its use has introduced. As more programs like Siri contitnue to be commercialized, these new legal grey areas will feature more often in mainstream debate. Intellectual property law and liability law will probably be the areas most affected by uptake of chatbots by consumers.

Intellectual property law creates ownership rights for creators or inventors, to protect their interests in the works they create. Copyright law in particular, protects artistic creations by controlling the means by which these creations are distributed. The owners of copyright are then able to use their artistic works to earn an income. Anyone else who wants to deal with the creative works for profit or personal use must get authorization from the copyright owner. Persons who infringe on copyright are liable to face civil suits, arrest and fines. In the case of chatbots, the owner of the sounds produced by the program has not been clearly defined. It is quite likely that in the near future, these sounds will become a lucrative form of creative work and when that does happen it will be imperative that the law defines who the owner of these sounds is. Users are capable of using chatbot's features to mix different sounds, including works protected by copyright, to come up with new sounds. In this case, the law is unclear whether such content would be considered to be new content or whether it would be attributed to the original producers of the sound.

Another important question that would have to be addressed would be the issue of ownership between the creators of artificial intelligence programs, the users of such programs and those who utilize the output produced by the programs. A case could be made that the creators of the program are the original authors and are entitled to copyright the works that are produced using such a program. As artificial intelligence gains popularity within the society and more people have access to machines and programs like Siri, it is inevitable that conflicts of ownership will arise as different people battle to be recognized as the owner of the works produced. From the perspective of intellectual property, artificial intelligence cannot be left within the public domain. Due to its innate value and its capacity to generate new content, there will definitely be ownership wrangles. The law therefore needs to provide clarity and guidance on who has the right to claim ownership.

Law enforcement agents must constantly innovate in order to successfully investigate crime. Although the internet has made it easier to commit certain crimes, programs such as the ‘Sweetie’, avatar run by the charity Terres des Hommes based in Holland, illustrate how artificial intelligence can help to solve crime. The Sweetie avatar was developed by the charity to help investigate sex tourists who targeted children online. The offenders in such crimes engage in sexual acts with children from developing countries. The children are lured into the illicit practice with promises that they will be paid for their participation. After making contact and confirming that the children are indeed underage, the offenders then request the children to perform sexual acts in front of the cameras. The offenders may also perform sexual acts and request the children to view them.

The offenders prey on vulnerable children who often come from poor developing countries. The children are physically and mentally exploited to gratify offenders from wealthy Western countries. In October 2014, the Sweetie avatar project experienced its first successful conviction of a sex predator. The man, an Australian national named Scott Robert Hansen admitted that he had sent nude images of himself performing obscene acts to Sweetie. Hansen also pleaded guilty to possession of child pornography. Both these offenses were violations of previous orders issued against him as a repeat sexual offender. Sweetie is an app that is able to mimic the movements of a real ten year old girl. The 3D model is very lifelike, and the app allows for natural interactions such as typing during chats, nodding in response to questions asked or comments made. The app also makes it possible for the operator to move the 3D model from side to side in its seat. Hansen fell for the ploy and believed that Sweetie was a real child.

According to the court, it was immaterial that Sweetie did not exist. Hansen was guilty because he believed that she was a real child and his intention was to perform obscene acts in front of her. Although Hansen was the only person to be convicted as a result of the Terres des Hommes project, researchers working on it had patrolled the internet for ten weeks. In that time, thousands of men had gotten in touch with Sweetie. Terres des Hommes compiled a list of one thousand suspects which was handed over to Interpol and state police agencies for further investigations. The Sweetie project illustrates that artificial intelligence can be utilized to investigate difficult crimes such as sex tourism. The biggest benefit of such a project is that it created an avatar that was very convincing and removed the need to use real people in the undercover operation. In addition the project had an ideal way of collecting evidence through use of a form of artificial intelligence that was very difficult to contradict. Thus, in a way, artificial intelligence provided grounds for challenging the already existing legal rights of the accused

Presently the law provides different standards of liability for those who break the law. In criminal law, a person is liable for criminal activity if they demonstrate that they have both a guilty mind (the settled intent to commit a crime) and they performed the guilty act in line with this intent. In civil cases liability for wrongdoing can be reduced based on mitigating factors such as the contributory negligence of the other party. There is currently no explicit provision in law that allows defendants to escape liability by claiming that they relied on incorrect advice from an intelligent machine. However, with increased reliance on artificial intelligence to guide basic daily tasks, the law will eventually have to address this question. If a user of artificial intelligence software makes a mistake while acting on information from the software, they may suffer losses or damages arising from the mistake. In such cases the developers of the software may be required to compensate the user or incur liability for the consequences of their software’s failure. If machines can be built with the ability to make critical decisions, it is important to have a clear idea of who will be held accountable for the actions of the machine.

Autonomous driverless cars represent an interesting example of the inception for such decisions to be made in the future. Florida, Nevada, Michigan, and D.C. states have also passed laws allowing autonomous cars driving on their streets in some capacity. The question to how autonomous cars might lead to the change of the liability and ethical rights stands upon software ethical settings that might control self-driving vehicles to prioritize human lives over financial or property loss. The numerous ethical dilemmas revolving around autonomous cars choosing to save passengers over saving a child’s life could arise. The lawmakers, regulators and standards organizations should develop concise legal principles upon which such ethical questions will be addressed by defining a liable entity.

Turing, one of the fathers of modern computer science and artificial intelligence, envisioned a world in which machines could be designed to think independently and solve problems. Modern scientists still share Turing’s vision. It is this vision that inspires countless mathematicians and developers around the world to continue on designing better software applications with greater capabilities. The scientific community and the society at large, have several positive expectations concerning artificial intelligence and the potential benefits humankind could reap from its development. Intelligent machines have the potential to make our daily lives easer as well as unlock mysteries that cannot be solved by human ingenuity. They also have the potential to end the dominance of human beings on this planet. The need for law to be reformed with regard to artificial intelligence is apparent. As the world heads into the next scientific era with both excitement and fear, the law must find a way to adjust the new circumstances created by machines that can think. As we involve artificial intelligence more in our lives and try to learn about its legal implications, there will undoubtedly be changes needed to be applied.

Patents in an era of artificial intelligence

“If you have an apple and I have an apple and we exchange these apples then you and I will still each have one apple. But if you have an idea and I have an idea and we exchange these ideas, then each of us will have two ideas.”

― George Bernard Shaw

Just in the last month, headlines about the future of artificial intelligence (AI) were dominating most of the technology news across the globe:

• On 15 November, OpenAI, a research company in San Francisco, California, co-founded by entrepreneur Elon Musk, announced their partnership with Microsoft to start running most of their large-scale experiments on Microsoft’s open source deep learning software platform, Azure;

• Two weeks later, Comma.ai open sourced its AI driver assistance system and robotics research platform;

• On 3 December, DeepMind, a unit of Google headquartered in London, opened up its own 3D virtual world, DeepMind Lab, for download and customization by outside developers;

• Two days later, OpenAI released a ‘meta-platform’ that enables AI programs to easily interact with dozens of 3D games originally designed for humans, as well as with some web browsers and smartphone apps;

• A day later, in a keynote at the annual Neural Information Processing Systems conference (NIPS) Russ Salakhutdinov, director of AI research at Apple, announced that Apple’s machine learning team would both publish its research and engage with academia;

• And on 10 December, Facebook announced to open-source their AI hardware design, Big Sur

What’s going on here? In the AI field, maybe more than in any other, the research thrives directly on open collaboration—AI researchers routinely attend industry conferences, publish papers, and contribute to open-source projects with mission statements geared toward the safe and careful joint development of machine intelligence. There is no doubt that AI will radically transform our society, having the same levels of impact as the Internet has since the nineties. And it has got me thinking that with AI becoming cheaper, more powerful and ever-more pervasive, with a potential to recast our economy, education, communication, transportation, security and healthcare from top to bottom, it is of the utmost importance that it (software and hardware) wouldn’t be hindered by the same innovation establishment that was designed to promote it.

System glitch

Our ideas are meant to be shared—in the past, the works of Shakespeare, Rembrandt and Gutenberg could be openly copied and built upon. But the growing dominance of the market economy, where the products of our intellectual labors can be acquired, transferred and sold, produced a system side-effect glitch. Due to the development costs (of actually inventing a new technology), the price of unprotected original products is simply higher than the price of their copies. The introduction of patent (to protect inventions) and copyright (to protect media) laws was intended to address this imbalance. Both aimed to encourage the creation and proliferation of new ideas by providing a brief and limited period of when no one else could copy your work. This gave creators a window of opportunity to break even with their investments and potentially make a profit. After which their work entered a public domain where it could be openly copied and built upon. This was the inception of open innovation cycle—an accessible vast distributed network of ideas, products, arts and entertainment - open to all as the common good. The influence of the market transformed this principle into believing that ideas are a form of property and subsequently this conviction yield a new term of “intellectual property” (IP). 

Loss aversion

“People’s tendency to prefer avoiding losses to acquiring equivalent gains”: it’s better to not lose $10 than to find $10 and we hate losing what we’ve got. To apply this principle to intellectual property: we believe that ideas are property; the gains we gain from copying the ideas of others don’t make a big impression on us, however when it’s our ideas being copied, we perceive it as a property loss and we get (excessively) territorial. Most of us have no problem with copying (as long as we’re the ones doing it). When we copy, we justify it; when others copy, we vilify it. So with the blind eye toward our own mimicry and propelled by faith in markets and ultimate ownership, IP swelled beyond its original intent with broader interpretations of existing laws, new legislation, new realms of coverage and alluring rewards. Starting in the late nineties, in the US, a series of new copyright laws and regulations began to be shaped (Net Act of 1997, DMCA of 1998, Pro-IP of 2008, The Enforcement of Intellectual Property Rights Act of 2008) and many more are in the works (SOPA, The Protect IP Act, Innovative Design Protection and Piracy Prevention Act, CAS “Six Strikes Program”). In Europe, there is currently 179 different sets of laws, implementing rules and regulations, geographical indications, treaty approvals, legal literature, IP jurisprudence documents, administered treaties and treaty memberships.

In the patents domain, technological coverage to prevent loss aversion made the leap from physical inventions to virtual ones, most notably—software.

Rundown of computing history

The first computer was a machine of cogs and gears, and became practical only in the 1950s and 60s with the invention of semi-conductors. Forty years ago, (mainframe-based) IBM emerged as an industry forerunner. Thirty years ago, (client server-based) Microsoft leapfrogged and gave ordinary people computing utility tools, such as word-processing. As computing became more personal and the World-Wide-Web turned Internet URLs into web site names that people could access, (internet-based) Google offered the ultimate personal service, free gateway to the infinite data web, and became the new computing leader. Ten years ago, (social-computing) Facebook morphed into a social medium as a personal identity tool. Today, (conversational-computing) Snap challenges Facebook as-Facebook-challenged-Google-as-Google-challenged-Microsoft-as-Microsoft-challenged-IBM-as-IBM-challenged-cogs-and-gears.

History of software patenting

Most people in the S/W patent debate are familiar with Apple v. Samsung, Oracle v. Google with open-source arguments, etc., but many are not familiar with the name Martin Goetz. Martin Goetz filed the first software patent in 1968, for a data organizing program his small company wished to sell for use on IBM machines. At the time, IBM offered all of their software as a part of the computers that they sold. This gave any other competitors in the software space a difficult starting point: competitors either offered their own hardware (HP produced their first computer just 2 years earlier) or convince people to buy software to replace the free software that came with the IBM computers.

Martin Goetz was leading a small software company, and did not want IBM to take his technological improvements and use the software for IBM's bundled programs without reimbursement, so he filed for a software patent. Thus, in 1968, the first software patent was issued to a small company, to help them compete against the largest computer company of the time. Although they had filed a patent to protect their IP, Goetz's company still had a difficult time competing in a market that was dominated by IBM, so they joined the US Justice Department's Anti-Trust suit against IBM, forcing IBM to un-bundle their software suite from their hardware appliances. 

So the beginning of the software industry started in 1969, with the unbundling of software by IBM and others. Consumers had previously regarded application and utility programs as cost-free because they were bundled in with the hardware. With unbundling, competing software products could be put on the market because such programs were no longer included in the price of the hardware. Almost immediately, the software industry has emerged. On the other hand, it was quickly evident that some type of protection would be needed for this new form of intellectual property.

Unfortunately, neither copyright law nor patent law seemed ready to take on this curious hybrid of creative expression and functional utility. During the 1970s, there was total confusion as to how to protect software from piracy. A few copyrights were issued by the Copyright Office, but most were rejected. A few software patents were granted by the PTO, but most patent applications for software-related inventions were rejected. The worst effect for the new industry was the uncertainty as to how this asset could be protected. Finally, in 1980, after an extensive review by the National Commission on New Technological Uses of Copyrighted Works (CONTU), Congress amended the Copyright Act of 1976 to cover software. It took a number of important cases to resolve most of the remaining issues in the copyright law, and there are still some issues being litigated, such as the so-called “look and feel”, but it appears that this area of the law is quite well understood now. For patents, it took a 1981 Supreme Court decision, Diamond v. Diehr, to bring software into the mainstream of patent law. This decision ruled that the presence of software in an otherwise patentable technology did not make that invention unpatentable. Diamond v. Diehr opened the door for a flood of software-related patent applications. Unfortunately, the PTO was not prepared for this new development, and in the intervening years they have issued thousands of patents that appear to be questionable to the software industry. It took a few years after 1981 for the flow of software-related applications to increase, and then there was some delay because of the processing of these applications. Now the number of infringement case is on the rise.

The transition from physical patents to virtual patents was not a natural one. In its core, a patent is a blueprint for how to recreate an invention; while (the majority of) software patents are more like a loose description of something that would look like if it actually was invented. And software patents are written in the broadest possible language to get the broadest possible protection - the vagueness of these terms can sometimes reach absurd levels, for example “information manufacturing machine” which covers anything computer-like or “material object” which covers… pretty much everything.

What now?

35 U.S.C. 101 reads as follows: 

“Whoever invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent therefor, subject to the conditions and requirement of this title.”

When considering subject matter eligibility under 35 U.S.C. 101, it must be determined whether the technology is directed to one of the four statutory categories of invention, i.e., process, machine, manufacture, or composition of matter. Since it became widespread and commercially valuable, it has been highly difficult to classify software within a specific category of intellectual property protection. 

Attempts are usually made in the field of software technology to combine methods or means used in different fields or apply them to another field in order to achieve an intended effect. Consequently, combining technologies used in different fields and applying them to another field is usually considered to be within the exercise of an ordinary creative activity of a person skilled in the art, so that when there is no technical difficulty (technical blocking factor) for such combination or application, the inventive step is not affirmatively inferred unless there exist special circumstances, such as remarkably advantageous effects. Software is not a monolithic work: it possesses a number of elements that can fall within different categories of intellectual property protection.

In Israel, legal doctrines adapt to changes in innovative technological products and the commercial methods that extend this innovation to the marketplace. The decision issued by the Israeli Patent Registrar in the matter of Digital Layers Inc confirms the patentability of software-related inventions. The Registrar ruled that the claimed invention should be examined as a whole and not by its components, basing his ruling on the recent matter of HTC Europe Co Ltd v. Apple Inc, quoting: 

"…It causes the device to operate in a new and improved way and it presents an improved interface to application software writers. Now it is fair to say that this solution is embodied in software but, as I have explained, an invention which is patentable in accordance with conventional patentable criteria does not become unpatentable because a computer program is used to implement it…"

After Alice Corp. v. CLS Bank International, if the technology does fall within one of the categories, it must then be determined whether the technology is directed to a judicial exception (i.e., law of nature, natural phenomenon, and abstract idea), and if so, it must additionally be determined whether the technology is a patent-eligible application of the exception. If an abstract idea is present in the technology, any element or combination of elements must be sufficient to ensure that the technology amounts to significantly more that the abstract idea itself. Examples of abstract ideas include fundamental economic practices (comparing new and stored information and using rules to identify options in SmartGene); certain methods of organizing human activities (managing game of Bingo in Planet Bingo v. VKGS and user interface for mean planning in Dietgoal Innovation vs. Bravo Media); an idea itself (store and transmit information in Cyberfone); and mathematical relationship/formulas (updating alarm limits using a mathematical formula in Parker v. Flook and generalized formulation of computer program to solve mathematical problem in Gottschalk v. Benson). The technology cannot merely amount to the application or instructions to apply the abstract idea on a computer, and is considered to amount to nothing more than requiring a generic computer system to merely carry out the abstract idea itself. Automating conventional activities using generic technology does not amount to an inventive concept as these simply describes “automation of a mathematical formula/relationship through use of generic computer function” (OIP Technologies v. Amazon). The procedure of the invention using an existing general purpose computer do not purport to improve any another technology or technical field, or to improve the functioning of a computer itself and do not move beyond a general link of the use of an abstract idea to a particular technological environment.  

The Federal Circuit continues to refine patent eligibility for software

• Following the Supreme Court’s decision in Alice v. CLS Bank, the court of appeals in Ultramercial v. Hulu reversed its prior decision and ruled that the claims were invalid under 35 U.S.C. § 101. Following the two-step framework outlined in Alice, Judge Lourie concluded that the claims were directed to an abstract idea.

• The Federal Circuit’s decision in Digitech Image Techs. v. Electronics for Imaging illustrated the difficulty many modern software implemented inventions face. If a chemist were to invent a mixture of two ingredients that gives better gas mileage, it is hard to imagine that a claim to such a mixture would receive a § 101 rejection. Yet, when to elements of data are admixed to produce improved computational results, the court are quick to dismiss this as a patent-ineligible abstraction. The real problem Digitech faced was that both data elements were seen as being abstractions: one data type represented color information (an abstraction) and the other data type represented spatial information (another abstraction).

• DDR Holdings v. Hotels.com, a 2014 Federal Circuit decision, provides a good discussion of a patent-eligible Internet-centric technology. In applying the Mayo/Alice two-part test, the court admitted it can be difficult sometimes to distinguish “between claims that recite a patent-eligible invention and claims that add too little to a patent-ineligible abstract concept”.

• Content Extraction v. Wells Fargo Bank gives a roadmap to how the Court of Appeals for the Federal Circuit will likely handle business method patents in the future. First, if the manipulation of economic relations are deemed present, you can be sure that any innovative idea with the economic realm will be treated as part of the abstract idea. Essentially, no matter how clever an economic idea may be, that idea will be branded part of the abstract idea problem, for which there can be only one solution, and that is having something else innovative that is not part of the economic idea. Practically speaking, this means the technology needs to incorporate an innovative technology improvement that makes the clever economic idea possible.

So the fuzziness of software patents’ boundaries has already turned the ICT industry into one colossal turf war. The expanding reach of IP has introduced more and more possibilities for opportunistic litigation (suing to make a buck). In the US, two-thirds of all patent law suits are currently over software, with 2015 seeing more patent lawsuits filed than any other year before. Of the high-tech cases, more than 88% involved non-practicing entities (NPEs). These include two charmlessly evolving species who’s entire business model is lawsuits—patent trolls and sample trolls. These are corporations that don’t actually create anything, they simply acquire a library of intellectual property rights and then litigate to earn profits (and because legal expenses are millions of dollars, their targets usually highly motivated to settle out of court). And the patent trolls are most common back in the troubled realm of software. The estimated wealth loss in the US alone is $500,000,000,000 (that’s a lot of zeros).

Technology conversion and open innovation

For technological companies, conversion and the advance of open source approach, driven largely by collaborative processes introduced by GitHub, Google's Android, Apple’s Swift and most recently by Microsoft joining Linux Foundation, has created a systematic process for innovation which is increasing software functionality and design. 150 years ago, innovation required a dedicated team spending hours in a lab, extensively experimenting and discovering “10,000 ways not to make a light-bulb”, before finding one that worked. Today, innovation has gained a critical mass as technology and users’ feedback are combined to give a purposeful team the ability to find 10,000 ways not to do something in a matter of hours, with the right plan in place. Today, a development team can deliver a product in a matter of months and test it in such a way that customer responses are delivered to the right development team member directly with the feedback being implemented and a system being corrected (almost) in real-time. The life of a software today patent is still 20 years from the date the application was filed. The patent system, that has existed since 1790, is not equipped to handle this new technology and there is a need to establish an agile, sui generic, short-cycle— three to five years—form of protection dedicated solely to software protection. As patents play an essential role in market-centred systems of innovation, patent exclusivity criteria should be redesigned more systematically to reflect the ability of software patents to foster innovation and to encourage technology diffusion.

The belief in intellectual property has grown so dominantly it has pushed the original intent of patents out of public consciousness. But that original purpose is right there, in plain sight—the US Patent Act of 1790 reads “An Act to promote the progress of useful Arts”. However, the exclusive rights this act introduced were offered in sacrifice for a different purpose - the intent was to better the lives of everyone by incentivizing creativity and producing a rich pool of knowledge open to all—but exclusive rights themselves came to be considered the only point, so they were expanded exponentially, and the result hasn’t been more progress or more learning, but more squabbling and more legal abuse. AI is entering the age of daunting problems—we need the best ideas possible, we need them now, and we need them to spread as fast as possible. The common meme was overwhelmed by exclusivity obsession and it needs to spread again, especially today. If the meme prospers, our laws, our norms, and our society—they will all transform as well.