If an artificial intelligence creates an invention in the forest, does that make it an inventor?
- Shannon McCue
- May 1, 2020
- 2 min read
The U.S. Patent Commissioner says no. https://www.uspto.gov/sites/default/files/documents/16524350_22apr2020.pdf
There has been much debate about who should own inventions that are completely products of artificial intelligence. Some have advocated that the AI's owner should own any intellectual property created by it. Others have suggested that the AI's programmer (if different from the owner) would have the better claim to ownership.
The Commissioner’s decision seems to favor a third possibility...no one can own it by ruling that the AI cannot be an inventor. In the U.S., patent rights initially vest with the inventor, and all ownership rights, therefore, flow from the inventor. In the case at issue, the patent named no human inventor and only listed the AI (DABUS). Reasoning that several aspects of the Patent Act referring to the inventor as a person or an individual require that an inventor be a human, the Commissioner foreclosed the possibility that the AI could be the inventor of the patent application. Absent any human contribution to the patentable subject matter, that would allow a person to be added as an inventor, DABUS patent application must be refused. Effectively, the Commissioner’s decision denies patentabilty to inventions where the only inventor is the AI. By extension, this prevents anyone from owning patent rights to these inventions.
With the expectation that artificial intelligence will increasingly create patentable products, methods or designs, this decision creates a serious gap for AI developers in their overall IP protection strategy. Denying protection places arguably places these assets in the public domain.
With that in mind, this decision likely will be appealed, and may garner the attention of Congress to address this gap in our current patent system. Until then, it seems that accounting for the human contribution to such inventions will be necessary to identify a person as an inventor. Ensuring human contribution as part of the AI’s development of patentable inventions is a better practice until this uncertainty is resolved. Since inventorship goes to the validity of the patent, review of such contributions with patent counsel will be critical to ensuring a defensible inventorship position if the validity of the patent is questioned.
Stay tuned as we continue to monitor the development of AI IP ownership.
