Metro Washington, D.C. patent attorney John Ambrose spoke to Law360 about the role of artificial intelligence in inventing new technologies and whether AI can legally be named an inventor.
The idea of AI as inventor has been a topic in patent law circles for years, but the recent filing of two patent applications by the University of Surrey on supposed inventions that are the products of AI systems has quickly moved the topic under the spotlight. The filings have also accelerated the need for Congress and the courts to consider if the laws need to be changed in light of AI patents.
For now, patent laws refer to the inventor as an “individual” in the U.S. and as a “natural person” in many other countries. This coincides with the requirement that inventors must declare that they are the original inventor and are subject to punishments if they falsify statements.
“How could a computer make those statements?” asks Ambrose. “These are nuts-and-bolts issues that, when you look at the law itself, would make it difficult for an AI model to be listed as an inventor, at least in the U.S.”
The role of the human programmer is also a key element of the discussion. AI programs are generally programmed to take in large amounts of data and turn out patterns or solutions. If a human actor points the way for the AI system, is that person not the inventor?
“Where’s the line between using a computer as a very powerful tool to enhance the abilities of a human and the computer itself being the inventor? I don’t think it’s very simple to define that line,” Ambrose asks. “We also don’t always know exactly how AI arrives at its results. It’s almost like a black box.”
Lawmakers will also need to figure out whether AI programs can own the rights to patents, transfer those rights, and enforce them. Some point to the Constitution’s stance on intellectual property protections — that they are intended to “promote the progress of science and the useful arts” — and wonder whether giving patents to AI programs will help advance or hinder that goal. Some worry that AI could take over as the planet’s most prolific inventors and thereby block humans from obtaining patents, for example, while others foresee AI working in harmony with humans to solve major scientific challenges, such as curing major diseases.
At any rate, lawmakers need to hurry to develop the legal framework for inventions created by AI programs. “AI is only getting stronger and faster, and it’s performing more and more fascinating tasks,” Ambrose says. “We’re going to have to address these issues at some point.”