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Posted18 days ago
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I want to add my question: How can something be a patent, if the result of the prompts are not always the same on each run? My understanding is: Only things can go into patents, which are "reproduceable"?
Maybe Im wrong?
My absolute wild guess as a layman is that prompts will at most get "trade secret" protection and won't be able to be copyrighted or patented.
In stabble diffusion, it seems to me that if we define a seed with the prompt, we get the same result, no?
Recipes can be trade secrets but not IP.(Unless it's a super rare circumstance that proves uniqueness in a 'Food Science' way).
I surely hope no one can patent a prompt. That would be an annoying world to live in.
Algorithms are considered mathematics and not patentable in themselves. So even if prompts are seen as algorithms, they would not be patentable. Prompts would have the usual copyright protections.
I presume though that some specific prompts may satisfy the criteria for patentability.
Anyone who attempts to do so will either need to be secretive and bribey to pull it off and will then also have to hope that no one ever finds out because if they did, then in any legal proceedings that come due to said patent, (which is the entire point of a patent), the outcome will be that their patent is invalidated by the court and the case thrown out.
The point of a patent is to make it so that, while the patent lasts, no one else can use said patent without licensing it from you, and if they do so without the license they open themselves up to civil penalties that can exceed any potential profits from the illicit licensing.
1: Prompts have no value in and of themselves.
2: The ownership of raw AI generated materials is in a grey area. It might be public domain, it might be owned by the person who prompted it, we don't have clear hard guidelines on that.
3: AI is trained on a dataset of billions of pieces of other peoples work. Any novelty (novelty is a requirement for a patent) that comes from AI is at best an accident of the same variety as the colors produced by spilling paint, where it has taken a slice from one person and a slice from another person and mixed them together.
So, all in all, AI prompts and their output are almost certainly not patentable, at least as long as one sane person is in the pipeline somewhere.
What do you mean by this? What aspects of their conduct would someone need to be secretive about?
If the patent, on review in court, fails the originality, novelty, or lack of prior art review, the patent can be dissolved.
https://www.retaildive.com/news/newegg-the-bane-of-patent-tr...
https://www.newegg.com/insider/newegg-vs-patent-trolls-when-...
A patent filed on a prompt would most likely fail the novelty/prior art review phase of the patent application, so the only way a patent could succeed being granted in the first place would be through extreme secrecy and probably bribery of a patent agent to push the patent through.
Just because you have the patent does not mean you will win all infringement claims though, as you noted with those Newegg cases
If your patent is crap, like the one that could feasibly be put on a prompt, then there is only the thinnest veneer of protection for your prompt idea, so it's pointless to make one if there is any value more than the 10-30 lawyer hours needed to take it to court and destroy it.
I think this is currently an untested grey area. With time I'm sure prompts will find a place in the existing IP legal framework, but there doesn't seem to be one yet.
In the United States, the only patentable subject matter is processes, machines, manufactures, or compositions of matter [1]. Anything outside of those areas is not directly patentable. Some subject matter like mathematics and "mental processes" generally are categorized as "abstract ideas" that therefore are not directly patentable [2]. It is possible to patent something that contains an abstract idea, but it also has to have some "additional elements" that elevate it beyond merely claiming an abstract idea.
I suggest reading MPEP § 2106 [2] and looking at the first diagram given there titled "Subject Matter Eligibility Test for Products and Processes". That is the exact analysis that a patent examiner would use to determine if something is patentable subject matter or not (including for any claim with a prompt).
I strongly suggest that you talk to a lawyer if you want specific advice that answers your question directly. I'm not commenting on any copyright aspects.
Maybe there has already been a case that’s been debated in court.
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