Page 53 - Healthcare News Nov/Dec 2021

HEALTHCARE LAW
Can AI Machines Invent?
T h e A nT
swer Is No — But That Might Be Changing
By MARY BONZAGNI
he term artificial intelligence (AI) is used to describe a machine’s ability to ‘think’ or carry out tasks that were once said to require human intel- ligence. Tasks such as learning, logic, reasoning, perception, and, yes,
a patent listing to an inventor that is not a human being. The patent relates to a “food container based on fractal geometry,” and the sole inventor is an AI system called DABUS.
Within two days of this patent grant, Judge Jonathan Beach of Melbourne ruled that there was no reason why Stephen Thaler, the researcher who developed DA- BUS, could not protect inventions that list the machine as their sole inventor.
But will the U.S. and other countries around the world follow suit, or will they again turn down the idea of non-human inventors? For now, the answer to this
question is unclear.
During this period of uncertainty, how does one go about protecting AI-gener-
ated inventions in the U.S. using patents, who should be listed as an inventor on U.S. patent applications for such inventions, and who owns these inventions and related patents? For now, the answer to these questions is also unclear.
The most likely inventor candidate(s) appears to be the person or people who developed the machine that simulates human-intelligence processes (i.e., the developers who made the machine that supplies analysis, triggers events based on findings, parses data contextually to provide the requested information, etc.). That same person(s) or their employer(s) would own the invention and related patent.
But are U.S. patents for AI inventions that list the wrong inventors valid and enforceable? The claim of patent inventorship is of fundamental importance to the validity of a U.S. patent. In fact, failure to name an inventor or naming an incorrect
inventor can invalidate a patent.
So, as AI becomes more and more a significant part of U.S. companies’ research
and development efforts, these are questions that need to be asked and answered. These companies, as well as individuals, need clarification, which likely will first re- quire a reform of the U.S. patent laws. It appears to be up to the judicial system or, more likely, legislators to provide us with the necessary clarification and/or reform.
We are now at a crossroads, and staying the course is not the answer. Patents motivate people who develop, own, and use AI — uncertainty does not. Allowing patents on AI-generated inventions will promote the development of inventive AI, which will ultimately benefit society with more innovation. v
Mary Bonzagni is a patent attorney and co-chair of Bulkley Richardson’s Intellectual Property and Technology practice group; (413) 272-6200.
creativity are now being performed by machines used in every industry.
In fact, AI now forms a part of our everyday lives, from AI-powered search
engines, spell checkers, and spam filters to self-driving cars to music-streaming services that use AI to assess your listening habits — with each advance making our lives easier for years to come.
“We are now at a crossroads, and staying the course is not the answer. Patents motivate people who develop, own, and use AI — uncertainty does not.”
In fact, AI looks like a revolutionary force that drives innovation — but can AI invent?
At least for now, the U.S. Patent and Trademark Office (USPTO) has provided us with an answer to this question — a categorical ‘no.’ The USPTO has held that the statutory language of the U.S. Code clearly defines ‘inventor’ and ‘joint inven- tor’ as natural persons. Further, the USPTO points out that the purpose of U.S. patent laws is to encourage invention by providing inventors with a limited term of exclusionary rights. The prospect of holding a patent would not motivate an AI — at least not yet.
In a similar vein, the relevant patent laws of the European Union and the United Kingdom are also said to require a human inventor.
But has the tide begun to turn? Perhaps.
The South African Patent Office and an Australian federal judge recently moved to clear the path for such inventions. The South African Patent Office now holds the noteworthy distinction of being the first patent office in the world to grant
State Updates Guidance to Preserve Hospital Capacity, Workforce
BOSTON — The Baker-Polito administration, in collaboration with the Massachusetts Health & Hospital Assoc. (MHA), announced updated hospital guidance to conserve inpatient hospital capacity and to protect pa- tients and the healthcare workforce in response to several challenges impacting the Commonwealth’s hospitals.
The Department of Public Health (DPH) released updated guidance to hospitals to reduce certain non- essential, elective services and procedures via a COVID-19 public-health emergency order. Effective Nov. 29, 2021, any hospital or hospital system that has limited capacity was required to begin to reduce non-essential, non-urgent scheduled procedures to ensure adequate hospital capac- ity for immediate healthcare needs.
This guidance, jointly developed by MHA and the ad- ministration, was agreed upon based on several contribut- ing factors. There is a critical staffing shortage across the healthcare system, largely due to staff shortages stemming from the pandemic. This staffing shortage has also con-
tributed to the loss of approximately 500 medical/surgical and ICU hospital beds across the Commonwealth. These factors, coupled with the current high census level and annual increases in hospitalization commonly seen during the period post-Thanksgiving through January, require this concerted effort to preserve inpatient capacity.
“The current strain on hospital capacity is due to longer-than-average hospital stays and significant work- force shortages, separate and apart from the challenges brought on by COVID,” said Marylou Sudders, secretary of Health and Human Services. “COVID hospitalizations in Massachusetts remain lower than almost every other state in the nation, but the challenges the healthcare sys- tem face remain, and this order will ensure hospitals can serve all residents, including those who require treatment for COVID-19.”
DPH defines non-essential, non-urgent scheduled procedures as procedures that are scheduled in advance because the procedure is not a medical emergency and
where delay will not result in adverse outcomes to the patient’s health. This reduction will not impact urgent and essential procedures.
“Our healthcare system and state leaders have done heroic work to mitigate this public-health crisis over the past 20 months. But we are now seeing significant strain on hospital capacity due largely to workforce shortages and an influx of non-COVID-19 patients who deferred care and now need complex medical care,” said Steve Walsh, president and CEO of the MHA. “To address these challenges, MHA worked closely with the administra- tion to develop a solution that is patient-focused and can ensure that safe, high-quality care remains available to everyone in need in the weeks ahead. We are grateful for the Baker-Polito administration’s leadership on behalf of our providers and caregivers, and for the collaboration that has enabled us to continue to offer world-renowned care through every turn of this crisis.”
NOVEMBER/DECEMBER 2021
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