The line between artificial intelligence (“AI”) and pure human innovation has blurred as technology continues to evolve at a rapid pace. Technological advances and the parallel progress of AI has resulted in several key innovations: robots can double as radiologists and have the ability to interpret CT scans and other imaging, vehicles can drive themselves with automated technology, and algorithms have the ability to create written and artistic bodies of work.
AI advances have been front and center during the COVID-19 pandemic. Algorithms were established to determine which patients could be discharged from the hospital, unique symptoms like loss of smell were identified as a distinguishing factor from the flu, and future outbreaks could be predicted using AI. A human vaccine was exclusively generated by an AI program called SAM, and clinical trials recently began in the United States.
As technology continues its relentless advance, AI continues to evolve from a mere tool that facilitates the creation of innovative outputs to creating outputs itself—a painter not just a paintbrush. In 1950, Alan Turing posed the question: “Can machines think?” We must now also consider: “Can machines invent?”
The intersection of AI and the law creates interesting inquiries: Should AI be treated like a technological tool or like a human? This issue has been addressed in the academic literature in the context of liability, contracts, and criminal law. Today, these issues are also at the forefront of intellectual property law.
The United States Patent and Trademark Office (USPTO) states that “in the 16 years from 2002 to 2018, annual AI patent applications increased by more than 100%, rising from 30,000 to more than 60,000 annually. Over the same period, the share of all patent applications that contain AI grew from 9% to nearly 16%.”
The U.S. National Institute of Standards and Technology define AI technologies and systems to “comprise software and/or hardware that can learn to solve complex problems, make predictions or undertake tasks that require human-like sensing (such as vision, speech, and touch), perception, cognition, planning, learning, communication, or physical action.” The USPTO, which finds this definition “carefully constructed” but “not specific enough for a patent level analysis” defines AI as comprising one or more of the following component technologies: (i) vision, (ii) planning/control, (iii) knowledge processing, (iv) speech, (v) AI hardware, (vi) evolutionary computation, (vii) natural language processing, and (viii) machine learning.
One of today’s big questions in IP is whether AI can be named as the inventor in a patent application. As discussed below, while the United States, Europe and the United Kingdom say no, South Africa and Australia say yes.
DABUS and Its Implications Around the Globe
In 2018 and 2019, Dr. Stephen Thaler filed a patent application naming Device for Autonomous Bootstrapping of Unified Sentience, known as “DABUS,” as the inventor of the resulting inventions. The application was filed in the European Union, United States, and United Kingdom patent offices, and all three entities denied the patent application on the basis of one key point: Only human inventors can be issued a patent.
In the United States, the Patent Act provides the statutory support for the conclusion that inventors must be humans. Section 101 of the Patent Act provides, “Whoever invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent therefor.…” Section 102 adds that a “person shall be entitled.…”
South Africa and Australia are not following the trend of their European and American counterparts. In both South Africa and Australia, a patent application was granted to DABUS with Dr. Thaler as the owner of the patent. However, this blanket approval appears to be vulnerable. In South Africa, patent applications are granted if the minimum formalities are met; it appears there wasn’t an examination of the substantive portion of the application. A third party could file to revoke the patent based on lack of novelty and inventiveness, and also allege that Dr. Thaler wasn’t entitled to apply for the patent.
In Australia, the court expanded the definition of inventor. It ruled that for a patent the ordinary meaning of inventor doesn’t exclude nonhumans. The reasoning behind this decision is that several individuals could contribute to the AI, and naming the AI as the inventor avoids the uncertainty of who should be recognized for the inventive process.
The Future of AI through the Lens of Intellectual Property and Policy
As AI becomes more sophisticated, intellectual property law will almost certainly need to evolve to address the role of AI in creating patentable inventions. These issues are being discussed and debated among academics, regulatory bodies, and the broader legal community.
The importance of the future role of AI in IP was reflected in a request for comments on questions concerning patent law as applied to AI inventions by the USPTO in 2019. Among the questions posed by the USPTO was: “Do current patent laws and regulations regarding inventorship need to be revised to take into account inventions where an entity or entities other than a natural person contributed to the conception of an invention?”
The more difficult questions are: (1) whether an invention created by AI, as opposed to one that AI contributed to, is patent-eligible, and (2) if so, who should be awarded inventorship for the invention created by a machine?
There are a host of issues that must be explored to answer these questions. Some are philosophical, such as whether AI systems, particularly those that embody more human-like characteristics, should be treated as mere technological tools or as human-like social agents?
Other questions are more practical. One of the most important policy issues at the heart of this debate concerns whether innovation will be stifled if patent protection is not granted to AI. Advocates for reform argue that without such protection, future AI-generated inventions will simply enter the public domain. If that happens, and there is no profit motive for AI inventions, there will be no incentive for humans to create more advanced AI systems.
In his book, The Reasonable Robot, law professor Ryan Abbott, who is also a member of the Artificial Inventor Project, argues that making patent protection available to AI “would make inventive AI more valuable and incentivize AI development, which would translate to rewards for effort upstream from the stage of invention and ultimately result in more innovation.” On the other hand, critics argue that granting patents to AI may suppress human creativity.
There are no easy answers to these questions. A white paper released by the World Economic Forum titled “Artificial Intelligence Collides with Patent Law” (the “White Paper”) asserts that the path forward must “identify possible ‘middle grounds’ to help balance the competing objectives and factors.”
Regarding issues of patent-eligibility, the White Paper proposes possible middle ground solutions, including:
- “[R]aising the patentability standard (g. on nonobviousness) for inventions created solely by AI, which would level the playing field to some extent between human inventors and AI.”
- “[G]ranting different patent periods based on the level of human involvement in the inventive process.”
- “[R]aising the bar for utility just for AI-generated inventions, so that only the truly ‘useful’ inventions by AI would be eligible for patent rights.”
As noted above, if it is determined that inventions created by AI systems are eligible for patent protection, the next question becomes who should be listed as the inventor. This question also requires an analysis of incentives and a balancing of interests. The White Paper notes that while legislatures may have the power to grant legal personhood and inventorship status to AI systems, doing so may not serve the fundamental purpose of intellectual property policy which is incentivizing innovation.
According to the White Paper, “Would there be any meaningful benefits in recognizing AI as inventors beyond those provided by allowing AI-created inventions to be patentable?” In other words, computers that lack consciousness would not be any more motivated to be inventive by the possibility of being granted a patent.
Another option addressed by the White Paper is “not listing any inventor” when granting a patent for an invention created by an AI. As the White Paper notes, current law would need to be updated to establish patents for inventions created by AI without listing an inventor. This would obviate the need to grant legal personhood to machines.
However, in order to spur innovation, “sufficient incentives must be provided to the people involved in creating and maintaining the AI that generates inventive ideas, so that they will be motivated to continue developing such inventive AI.” To address this problem, the White Paper suggests that “a new category may need to be created for developers so that their contributions are acknowledged on the face of the patent.”
What Comes Next for AI and Patent Law Policy?
The only thing we know for sure is that machines will continue to become more advanced and technological innovation will continue to accelerate. IP law must find a middle ground in order to foster a partnership between machines and humans that furthers fundamental patent law policy objectives of promoting innovation and investment in new technologies.
 Request for Comments on Patenting Artificial Intelligence Inventions, 84 Fed. Reg. 44889 (2019).
 Id. page 10, citing Cf. Yanisky-Ravid, supra note 146, at 3 (discussing the “non-obviousness standard used by other scholars to afford patent protection to inventions by AI systems”)
 Id., citing Erica Fraser, “Computers as Inventors – Legal and Policy Implications of Artificial Intelligence on Patent Law”, SCRIPTed 13(3), 305 (2016)