Two new startups relying on relatively similar technology have recently presented business models that could necessitate revisions to our intellectual property laws.

The first is Qentis, a “company” that is claiming (satirically, it appears) that its computers are in the process of generating essentially every possible combinations of words, preemptively copyrighting all creative text. The second is Cloem, a company that provides software (not satirically, it appears) to linguistically manipulate a seed set of a client’s patent claims by, for example, substituting in synonyms or reordering steps in a process, thereby generating tens of thousands of potentially patentable inventions.

With respect to Qentis and the copyright laws, aspiring authors need not worry much about being accused of copyright infringement. The Copyright Office has already announced that it “will not register works produced by a machine or mere mechanical process that operates randomly or automatically without any creative input or intervention from a human author.” Further, later creators cannot be held liable for copyright infringement if they independently created their own content. Conversely, it remains conceivable that Qentis could, if it subsequently but independently generated the Harry Potter series, compete with author J.K. Rowling in selling the books.

To date, however, decisions allowing parallel commercial exploitation of copyrighted works have involved subsequent works of authorship that were themselves copyrightable. It remains to be seen whether courts will prevent owners of works generated by brute computational force (and therefore not copyrightable) from piggybacking on the success of identical works first made popular by others.

With respect to Cloem and the patent laws, however, the situation is murkier. There is reason to believe that at least some of its computer-conceived inventions could be patentable and, indeed, patents have already been granted on inventions designed wholly or in part by software.

Interestingly, of a sample of patents we reviewed that were conceived wholly or in part by computers, none appear to have been individually sold to a private buyer, but given that many patents are never successfully monetized, our limited set of data points does not necessarily suggest that the market has issued its own de facto negative opinion about the patentability of computer-conceived inventions.

If Cloem’s claims are patentable, it is unclear who would be qualify as an inventor. The patent statutes define “inventor” as an “individual” — not a computer. When multiple people work together, all that is required to be a joint inventor is that that person contributed to the conception of an important or necessary component of the claimed invention in a manner that required more than just the exercise of ordinary skill. The original inventors of the seed claims or its drafters would seem more likely than anyone else to be named as joint inventors. Cloem’s software engineers, on the other hand, are less likely to be considered co-inventors. The patent laws require that each inventor must contribute some element of the invention, as an inventor may use “the services, ideas, and aid of others in the process of perfecting his invention without losing his right to a patent.” A software engineer who simply wrote general-purpose claim-generating code seemingly would have contributed merely a tool used by others rather than an important or necessary element of the claimed invention.

Inventorship questions such as these are just the tip of the iceberg. There are many other potential uses for Cloem’s claims, such as defensive prior art, that we have not touched upon here. A more comprehensive study of these uses and the novel legal questions they raise will be detailed in a forthcoming law journal article. But with respect to patentability, the policy underlying current patent law might suggest that treating Cloem’s claims as patentable could be appropriate.

Why would the Patent Office not grant patents on computer-generated claims if they are useful, novel, non-obvious, and supported by a clear, enabling written description — just like any other patented claims? Allowing such patents would reward not only those that perform the manual labor of identifying useful inventions amidst the heap of computer-generated claims but also companies such as Cloem that develop and improve computerized invention software itself.

Cloem’s software arguably accelerates inventive activity, and that acceleration is, in and of itself, the type of innovation that society should desire to — and already does — reward with patents.

Ben Hattenbach is a partner and Joshua Glucoft is an associate at Irell & Manella LLP, where they both specialize in intellectual property litigation. The co-authors and their firm have no relationship with the two companies covered in this article. This article does not necessarily represent the views of the firm or its clients.

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