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Who Gets to Patent Inventions Made by AI?

By Casey C. Sullivan, Esq. | Last updated on

If you give 1,000 monkeys 1,000 typewriters, sooner or later they'll get around to writing "Hamlet" -- or so the theory goes. But what if those primates do a little bit more than just stumble across "Alas, poor Yorick"? What if they come up with something wholly novel?

That's not too likely, at least not with typing primates, but it's already happening with creative computers and artificial intelligence. Rather than banging aimlessly until they randomly invent something, some of today's artificial intelligence programs are designed to be creative, giving rise to a new influx of "nonhuman inventors" -- and raising some interesting legal questions in the process.

Computers That Invent

We're not talking about the rights of robots or the ethics of AI here, we're talking about who gets to own the IP.

Machines are already creating patentable inventions, and have been since at least the 1990's, as University of Surrey law professor Ryan Abbott notes in a recent paper published by the Boston College Law Review, "I Think, Therefore I Invent: Creative Computers and the Future of Patent Law". And with "a creative singularity in which computers overtake human inventors" possible, issues around patenting machine inventions have taken on greater urgency.

Would a creative machine be able to patent its invention? It's not clear, according to Abbott. The Patent Act requires an individual inventor capable of intellectual "conception." That conception in turn must be a "mental act." Abbot writes:

So, because computers are not individuals and it is questionable that they engage in a mental act, it is unclear whether a computer autonomously conceiving of a patentable invention could legally be an inventor.

But some computers are creating inventions, so what happens to those? The fact that few patent applications claim computers as inventors, Abbott finds, "suggests that applicants are choosing not to disclose the role of AI in the inventive process."

A Possible Future for AI Inventions

Some suggest that AI-created inventions would be difficult to protect. (The Copyright Office, for example, has said that computer programs themselves can be registered, "but not the computer-generated literary work.")

"Without a legal inventor," Abbot writes, "new inventions would not be eligible for patent protection and would enter the public domain after being disclosed."

That is, perhaps. And perhaps just for now. There's no statute directly on point, nor any immediately applicable caselaw. Right now, many of the theories around artificial intelligence and IP law are simply untested.

Abbott, for his part, recommends recognizing creative computers as inventors under the Patent and Copyright Clause. Such recognition could spur invention, he argues, and encourage the creation of more creative computers.

Computers could even revolutionize the PHOSITA standard of patentability. (That's "person having ordinary skill in the art," the theory that if a skilled person, familiar with all prior art, would have identified an innovation as "obvious," then it was no innovation at all.) Replacing the hypothetically informed "skilled person" with a "skilled computer" actually aware of all prior art, could help separate the merely obvious machine and human creations from the truly creative.

In the meantime, however, the future of creative machines, and their IP, remains murky.

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