4 May 2020

Can an AI be an inventor?

UPDATE 04-05-2020: When we posted the article below, no statement had yet been made in the US as to whether an artificial intelligence could be considered the inventor of a patent application. The USPTO's decision was published yesterday, and the conclusion is clear: "a machine does not qualify as an inventor under the patent laws." The US patent office thus joins colleagues from Europe and the United Kingdom: DABUS is clever, but not an inventor from a legal point of view.

Article 23-01-2020:

Given the speed of today’s technological progress, inventions by an artificial intelligence (or AI) are well within the realm of the possible. However, the British Patent Office as well as the European Patent Office have already stated that an invention made by an artificial intelligence, no matter how smart, cannot be patented.

Questions regarding man’s capacity for intellectual creativity are not only an issue in the case of patents. In the world of intellectual property it is generally assumed that only humans have the intellectual capability to come up with ideas and creations that can enjoy legal protection. No matter how cute the selfies made by a monkey, he or she won’t be able to copyright them.

Things get complicated when we look at the legal ramifications of an invention made by an AI, because there are programmers and trainers behind an AI system. The work is usually done at the behest of a company, and when the AI creates something worthwhile or comes up with a clever idea, these companies would like to own the intellectual property rights over these ideas and creations.

Starting the debate
Patent attorney and professor of law Ryan Abbott believes that the law is lacking in this regard, and in collaboration with Stephen Thaler – the ‘father’ of the AI system DABUS (which, incidentally, is patented) – he decided to take the debate to another level. Together they got DABUS to come up with two inventions that were patentable. EP application 18275163.6 describes a food container with a fractal design, which allows the containers to be easily picked up by a robot and stacked in an interlocking way. EP application 18275174.3 concerns a system and method for attracting attention by means of light pulses. Related applications were filed in the US and the UK.

As it happens, both applications were found to have at least one claim that was novel and inventive. And yet, both applications were refused in a joint session on 25 November 2019, because the designation of the inventor was found not to meet the requirements of Article 81 and Rule 19 of the European Patent Convention (EPC). The Convention does not explicitly state that the inventor must be a natural person, but as Rule 19 mentions the “family name” and “given names” of the inventor, this is strongly implied. The procedure in the UK came to a similar decision. In the US the procedure is still ongoing, and interested parties have been requested to provide written comments. This could signify that the USPTO is perhaps more willing to explore the patenting of AI inventions further. Historically, inventors occupy a particularly important position in US patent law, and until 2011 the inventor also had to be the applicant when filing a patent application. Given this history, the route now taken by the USPTO is all the more remarkable.

The decisions of the UK Patent Office and the EPO have been appealed, so it would seem matters are not yet settled there either. The issue will also be debated during the October 2020 meeting of the International Association for the Protection of Intellectual Property (AIPPI) in China. The question touches upon more than just patent law, but also concerns things like property law (since an AI cannot own something, can it transfer ownership?) and other aspects (is an AI in the employment of a company?). The creative efforts of artificial intelligence will therefore continue to occupy the IP world for some time. Maybe someone could train a neural network to work on this?