Artificial Intelligence and Inventions

Part of the question of how the proliferation of artificial intelligence will impact intellectual property has been answered in a new ruling by the US Patent and Trademark Office (the “USPTO”).

Many interested in the effects of artificial intelligence on society, law, and the economy have asked whether artificial intelligence could be considered an “inventor” under patent law and who—or what—is entitled to protection, legal personality, and legal rights. Deeper under the surface, this question also requires an analysis of what it means to be a “human” and how our current notions are challenged by advancing technologies and scientific discoveries about the capabilities of non-humans. 

The USPTO has responded to an application for two patents with an artificial intelligence system, DABUS, listed as the inventor. DABUS designed an invention for shape-shifting food containers that are more robot-friendly and an emergency flashlight with an exigent rhythm. DABUS’s creator, Stephen Thaler, argued that he did not help DABUS design these inventions, so it would be technically inaccurate to claim that he, and not DABUS, is the inventor. Significantly, the application was not requesting that DABUS own the patent, just that it be recognized for its contribution as the inventor. 

The USPTO ruled that only “natural persons” could be inventors. The USPTO noted the use of “humanlike” terms including whoever, himself, and herself, in patent law as support for its position. Previously, the requirement under US patent law was that inventors had to be “individuals.” The USPTO ruling generally tracks with a similar ruling from the UK Intellectual Property Office and the European Patent Office.

Interestingly, the USPTO seems to acknowledge that the term “individual” or even “person” could be used to describe an AI system and that the issue here is that AI is not a natural person. This suggests a possible post-human basis for talking about AI in ways that does grant personhood and even legal rights. Simultaneously, the USPTO’s distinction and rejection here attempt to draw humanist lines in the sand to distinguish humans from AI based on a natural/unnatural dichotomy. 

Futurist Ray Kurzweil suggests we imagine a man writing down things only a human can do on various pieces of paper and pinning them to a wall. As technology continues to evolve and progress, one by one, the papers fall off the wall onto the ground. With each falling paper, we have to reassess and redefine ourselves in order to maintain the notion that there is something essential or innate about humans that makes us distinct, and therefore deserving of rights or entitlements no others should have. Whether that is true remains to be seen. DABUS is likely just one paper on the wall, with many, many more to come.