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Suppose you are an inventor with a patented invention. It is not a software invention but a computer method invention (e.g. the patented object is letan algorithm that solves a computational problem which has practical applications in industry). You log in to a generative AI platform such as Anthropic-Claude, OpenAI-ChatGPT, Alphabet-Gemini or whatever. And there you see that not only your patent appears there (a patent is a public document, so no problem with this) but that the platform is able to implement your algorithm and positively does that (I mean you ask the platform to implement the algorithm in the patent and it does it). In my view this second thing, the fact that the generative AI platform software implements the algorithm under the request of the user is a clear patent infringement, first from the generative AI platform side and second from the user side.

My question is:

Am I right to think that this situation implies two patent infringements from both the AI platform and the user of the platform? The platform is earning money implementing the algorithm, as he sells subscriptions to the platform. And the user might use the implementation of the algorithm to earn money.

I have seen a lot of legal commentary regarding the use of copyrighted material by generative AI platforms (I know the corresponding sentences and some cases related with this), but very little (close to nothing) regarding patents' use (that is a software implementation of the patented algorithms) by generative AI platforms and their users. Maybe this is because in the case of patented materials, the situation is already clear (there is infringement and the fact that this infringement is done through a generative AI platform changes nothing) or because most patents are about physical objects, that can not (yet ) be produced by these platforms.

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  • Comments have been moved to chat; please do not continue the discussion here. Before posting a comment below this one, please review the purposes of comments. Comments that do not request clarification or suggest improvements usually belong as an answer, on Law Meta, or in Law Chat. Comments continuing discussion may be removed. Commented yesterday

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35 U.S. Code § 271 says:

Except as otherwise provided in this title, whoever without authority makes, uses, offers to sell, or sells any patented invention, within the United States or imports into the United States any patented invention during the term of the patent therefor, infringes the patent

Whoever makes the patented thing infringes.

Whoever sells the patented thing infringes (except after an authorized first sale).

Whoever uses the patented thing infringes (except after an authorized first sale).

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  • Thanks for your answer Jen. So in your view, both the platform and the user are making a patent infringement, or only the platform ? Commented 2 days ago
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    This answer could use more analysis of how "make" and "use" are interpreted with respect to computer method inventions. Commented 2 days ago
  • For me the key point is that both the platform and the user of the platform has independent responsability for the infringement. Users must take care of where does the code generated by the platform comes from, because as far as a know the platform does not inform about it, it just outputs the code. So users should not make a frivolous use of these platforms. If they do, depending on what the user do later with this code, or with the product of the code, they might be sued for patent infringement. Of course the patent owner must be able to detect this infringement... Commented 2 days ago
  • I wanted to wait sometime to see if there are other views about this question. If in about additional twenty four hours from now on nobody adds a new answer that adds a different point of view I will accept the answer. Commented yesterday

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