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Suppose an original piece of software contains an AI algorithm (that is NOT patented) that tries to optimise the solutions the software produces.

Out of the box the software does not infringe any patents, but after learning from user input and goals it starts homing in on a behaviour which has been patented.

It 'learns' that the patented solution is a optimum solution.

Would that be an infringement?

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It doesn't matter. The US patent system is based on "first to invent", so it doesn't matter if other inventors find new ways to discover an identical solution later. It is still infringing on the original patent.

If you think about it, computers (and AI) are no more or less a tool of invention than a pencil and draft board. There is nothing in intellectual properly law which absolves real people from infringing on prior inventions based on "my robot came up with it".

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    Thanks, that's more or less what I imagined. But I don't understand who would be liable for the infingement; the orginal software supplier supplied the AI tools, but with no knowledge of the eventual solutions it would find, if they were liable then it means anybody who supplies AI could become liable for violations of things that may not even have been patented at the time of software release; if the end user is liable for infingements....well that's a mess! – Roger Irwin Dec 20 '18 at 8:06
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It would be an infringement. The end user would be using a patented solution. He and the software cpy may both do this unknowingly, but nevertheless infringing.

https://www.upcounsel.com/indirect-patent-infringement

"The most common method of indirect infringement is when two or more parties support one another in the infringement activity"

This is called divided infringement. Both could in theory be held accountable, since you are not allowed to conspire with another party to infringe a patent, specifically in US:

"U.S. patent laws allow patent owners to sue others for indirect patent infringement. As such, even though one type of entity along the distribution channel may not be liable for direct infringement, that entity may still be liable under an indirect patent infringement theory" https://ocpatentlawyer.com/scotus-reduces-liability-for-indirect-patent-infringement/

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  • It is only divided infringement if, let say, it is a method patent and one party does some steps and the other party does the rest of the steps. In the OP's scenario the product leaves the original developer as something that does not infringe and, let's say, is not marketed as something that automatically evolves into something that infringes. It later becomes something that infringes and is used by the end user = therefore the end user becomes a direct infringer. The developer might or might not be an indirect infringer. – George White May 12 at 22:15
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Unlike copyright infringement which requires copying an original, even if inadvertently, patent infringement does not require any knowledge of the original invention and can even be an "original" invention by the infringer. Infringement is not triggered by a second inventor conceiving the same thing as the patent owner but is triggered by making, selling, offering for sale, importing or using a patented device or executing the steps of a patented.

In your scenario the end user is using the patented invention and would be a direct infringer. If the software provider knew that this would occur they might be an indirect infringer essentially supplying a component of a patented object or might not be if it had significant non-infringing uses.

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