Since the dawn of science fiction, stories have been full of robotic characters exhibiting some form of artificial intelligence.
From HAL 9000 in 2001: A Space Odyssey, and Doctor Who’s Cybermen to Star Trek’s Commander Data, these intelligences have been portrayed as either entirely benign or overtly wicked.
Has the future finally arrived?
New tech, new challenges
With any paradigm-shifting technology, there’s always a period of disruption during which our existing ways of doing things struggle to catch up. And in this respect, intellectual property law is no exception.
Who (or what) gets the IP rights?
The Artificial Inventor Project, run by a group of intellectual property lawyers and an AI scientist, is on an international crusade to settle some interesting questions that AI poses to patent law.
One question in particular: If AI generates an idea, who gets the credit?
Generally, patent law requires a patent application to list one or more inventors and one or more applicants. The applicant owns the invention and the patent rights, either through a property transfer relationship with the inventor, or by being the inventor.
So, what happens when your inventor is a form of ‘property’ and not a natural person?
The team set about to find out…
Could AI really get the credit?
As part of the project, they developed AI systems capable of generating new technological ideas that meet patent office standards of novelty and inventive step.
They then filed a series of patent applications far and wide, seeking intellectual property rights for AI-generated output in the absence of a traditional human inventor or author.
The result? So far, it’s a no. Here’s a selection of the outcomes:
- USA patent application 16/524350 – DENIED – An inventor must be a natural person.
- EU patent applications EP18275163 EP18275174 DENIED – A machine is not an inventor within the meaning of the European patent convention.
- Australian patent application AU2019363 – DENIED – Only a natural person can be an inventor.
- New Zealand patent application 776029 – Rejected with leave to appeal granted. Inappropriate for the court to extend the definition of an inventor from natural persons as this is the territory of the legislature.
- UK patent application GB1816909.4 GB1818161.0 – DENIED – Only a person can be an inventor.
Humans are safe…for now, anyway
It seems that patent law is flexible enough to avoid attributing inventor status to machines, keeping that title exclusive to humans, for now.
Existing patent law defines AI systems as tools that have no contribution to anything of an inventive nature. The genesis of the ‘inventive spark’ still lives with the natural person crafting input prompts that trigger generative AI processes.
While this approach works for now, it may become increasingly rocky in future, considering the rate of change we’re seeing.
AI systems provide natural language assistance on websites as a common feature now. Given the trajectory of AI development, there could come a time when a person’s “invention” is little more than a prompt into an AI system in the form of a statement of a problem to be solved.
Could AI have ‘desire’ for ownership?
Interestingly, some of the above decisions so far have gone all the way back to the objective of the patent legislation: issuing property rights.
The initial UK patent office decision observed that the objective of their patent system was not being met because the AI lacked a desire to own the patent.
This begs the question: What if we could programme an AI with a ‘desire’ or ‘need’? A desire to make rent money? Could future AI systems need cash to rent a server from Amazon web services? What tax rate would it pay, and where is it domiciled for tax purposes?
The future of IP and content-generating machines
So, it’s obvious that the legislation and precedents we have are just not fit for purpose in the long run. Understandably so. Because who knew this would happen?
The future in this space will certainly be interesting. And will no doubt require a lot of thought put into what it means to create.
