It’s alive! If AI machines can invent should they be able to own patents, too?

Bots have rights, too – or do they?

Does an inventor have to be human to receive a patent? IP systems are angsting over how they should handle inventions generated by the growing number Artificial Intelligence systems and whether current laws need to be amended.

A group of academics in the and inventors in the UK have teamed up to challenge global thinking on AI-generated inventions by naming an AI system as the ‘inventor’ on two patent applications.

The case raises questions about what it means to invent and who has ownership rights to an AI invention – the AI owner, designer or the system itself.

An AI system can now create new innovation on its own, without a human inventor, even if it may require significant data input and instructions. It is a capability that will only expand as technology progresses. Whether patent protection should be available for devices and processes invented by AI remains an open and pressing issue.

AI Patent = No Patent?

“What would be a problem is [a patent office saying] you’re not going to get a patent because we believe the AI did the work that a human normally would have done,” Corey Slasberg, vice president and global head of intellectual-property affairs at Novartis AG told the Wall Street Journal. “So no one gets the patent. That’s the outcome we’re most concerned about.”

But pharma is not information technology, where some companies would prefer not to see patents that might threaten their leadership position.

If AI can receive attribution on an invention, businesses that can afford to build and supply AI systems with the enormous amounts of data they require can build patent multiple fences quickly in what could become robot-like war among tech giants. This may happen even if IP rights are eventually awarded to the AI system owner or manager.

“There is presently a consensus inherent in patent law globally that the owner of a patent is the inventor unless the rights have been assigned to another person, entity, or their employer,” reports Information Age.

However, the law also requires that the inventor must be a person who has contributed in some material way to the invention’s conception. Therefore, under current law, only a human is capable of being named as inventor and the AI system is a tool they have utilized to facilitate their innovation.

“To make the most of AI-based inventions, for the benefit of society as a whole, the issues surrounding rights of ownership must be resolved sooner rather than later,” stated the publication.


Seeking Input

AI inventiveness has already drawn the attention of the USPTO. In addition to hosting a conference on AI earlier this year, the PTO recently announced that it will broadly explore its approach to AI and is seeking public input on a variety of AI-related issues. The deadline for comment officially ended October 11. The agence will consider subsequent suggestions.

Among other things, the PTO has asked for input on whether current concepts of inventorship need to be revised to address situations where AI has contributed to the conception of an invention, whether there are any patent eligibility considerations unique to AI inventions, and whether AI impacts the level of ordinary skill in the art.

Jones Day, the law firm, reports that as AI technology evolves it will continue testing different areas of IP law and policy. For example:

  • How creative must AI be for it, not the human who creates or directs an machine or process, to qualify as the inventor? And is it wise to incentivize the use of wide-roaming, undirected AI that is creative enough to meet this bar?
  • Will the pace of AI innovation allow a small number of AI owners to patent too many inventions too quickly?
  • How will AI handle the existing, or revised, procedural requirements for patent applications and litigation, such as discovery and the oath or declaration required by statute?

Ryan Abbott, a law and health-sciences professor at the University of Surrey in the U.K. who is leading a group requesting an AI patent told Wall Street Journal: “If I teach my Ph.D. student that and they go on to make a final complex idea, that doesn’t make me an inventor on their patent, so it shouldn’t with a machine.”

The Jones Day summary can be found here.

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