AI inventors: can AI own intellectual property rights?

It may be smart, but it’s not that clever. Arti­fi­cial intel­li­gence is noth­ing with­out human input. The algo­rithms that dri­ve AI rely on the exper­tise of pro­gram­mers and it’s still no more than a tool – albeit a pow­er­ful one – that sci­en­tists and engi­neers can use to solve prob­lems. 

Yet this is not to say that AI isn’t the fastest-grow­ing deep tech­nol­o­gy in the world, with the poten­tial to trans­form people’s lives and boost nations’ economies. Facil­i­tat­ing AI inno­va­tion has even become a pri­or­i­ty for the UK gov­ern­ment, as laid out in the Nation­al AI Strat­e­gy it pub­lished in Sep­tem­ber.

The UK Intel­lec­tu­al Prop­er­ty Office (IPO) recog­nis­es the impor­tance of AI to such an extent that it has just start­ed an open con­sul­ta­tion seek­ing views on mat­ters such as whether AI-gen­er­at­ed inven­tions should be pro­tect­ed and, if so, how. The cur­rent legal sys­tem offers no pro­tec­tion, because it recog­nis­es only humans as own­ers of intel­lec­tu­al prop­er­ty.  

The IPO says: “We need to ensure that the law keeps up and is appro­pri­ate to incen­tivis­ing cre­ativ­i­ty and inno­va­tion.”

So, in cas­es where an AI sys­tem cre­ates some­thing new, sure­ly the peo­ple who pro­grammed that sys­tem should be acknowl­edged for the inno­va­tion and its con­tri­bu­tion to the pub­lic good? Or should AI alone be cred­it­ed as the inven­tor of ideas that forge a new future?

This is the crux of a debate that’s rag­ing in the tech and legal pro­fes­sions: can AI own intel­lec­tu­al prop­er­ty? And, if it can’t, could inno­va­tion be sti­fled? 

Test cas­es based on patent appli­ca­tions for two hypo­thet­i­cal AI inven­tions have become the focus of these argu­ments. Dr Stephen Thaler, a US sci­en­tist who has cre­at­ed an AI sys­tem called Device for the Autonomous Boot­strap­ping of Uni­fied Sen­tience (Dabus), has been putting the laws of numer­ous coun­tries to the test with the sup­port of Ryan Abbott, pro­fes­sor of law and health sci­ences at the Uni­ver­si­ty of Sur­rey. They are advo­cat­ing not for an AI sys­tem to be grant­ed its own patents, but for its own­ers to be grant­ed a patent on any inven­tion it may gen­er­ate.

Thaler’s patent appli­ca­tions have cred­it­ed Dabus as the sole inven­tor of “an improved bev­er­age con­tain­er and a ‘neur­al flame’ device used in search-and-res­cue mis­sions”. The appli­ca­tions have been reject­ed in both the UK and the US on the basis that only a per­son, and not a machine, can own patent rights. Leave to appeal has been sought in the UK Supreme Court. 

The IPO has wel­comed the judg­ment and its clar­i­fi­ca­tion of UK law as it stands. It says that it doesn’t envis­age award­ing such rights to an AI sys­tem, but it does fore­see grant­i­ng them to “the peo­ple and firms that use, and invest in, AI tech­nol­o­gy”.

Judges in both Aus­tralia and South Africa, on the oth­er hand, have ruled that AI can be list­ed as the rights own­er in patent appli­ca­tions. 

How should we think about these judg­ments and what are the con­se­quences? Opin­ions among lead­ing patent attor­neys are divid­ed.

“In the ‘real world’ beyond this case, I expect we’ll see a prac­tice devel­op­ing where­by patent appli­cants with a gen­uine inter­est in pro­tect­ing AI-gen­er­at­ed inven­tions will avoid nam­ing the AI as an inven­tor,” says Pete Sadler, part­ner at patent attor­ney prac­tice Red­die & Grose.

But then the courts may have to decide the link between the peo­ple cred­it­ed with devis­ing the inven­tive con­cept and the role played by their tech­nol­o­gy.

Dr Alexan­der Koren­berg is a part­ner with patent attor­ney prac­tice Kil­burn & Strode. A for­mer com­pu­ta­tion­al neu­ro­sci­en­tist, he points out that the cur­rent debate is based on a hypo­thet­i­cal premise, because it has yet to be estab­lished that a machine can actu­al­ly cre­ate inven­tions autonomous­ly. 

“Any­one who’s au fait with the tech­nol­o­gy knows that this would require some­thing like arti­fi­cial gen­er­al intel­li­gence [human-like AI], which is thought to be at least a few decades away,” he says. “It’s not even cer­tain that this will ever be a pos­si­bil­i­ty.”

The argu­ment that Koren­berg and oth­ers pro­pound is that AI is still no more than a tool with­out sen­tience, lack­ing the abil­i­ty to think inde­pen­dent­ly and spon­ta­neous­ly invent some­thing.

But let’s assume that AI sys­tems will come up with new things in such a way that makes it impos­si­ble to iden­ti­fy the human intel­lec­tu­al input in the final inven­tion, if this is not already hap­pen­ing. In such a case, to ensure the con­tin­ued devel­op­ment of this valu­able eco­nom­ic engine, British IP law would need to be updat­ed to deter inven­tors from mov­ing to a more sym­pa­thet­ic juris­dic­tion abroad.

Robert Jehan, part­ner and patent attor­ney at Williams Pow­ell, whose clients include Thaler and Abbott with their Dabus appli­ca­tions, believes that there will no longer be a prob­lem with patent­ing AI-gen­er­at­ed inven­tions in the UK, because the gov­ern­ment now seems more inclined to help.

“There appears to be a gen­er­al will­ing­ness to accom­mo­date the patent­ing of inven­tions cre­at­ed by AI sys­tems. The poten­tial rewards for doing so and the loss­es for fail­ing are sim­ply too great to ignore,” he says. “Any coun­try that refus­es to pro­tect AI-gen­er­at­ed inven­tions, whether these are cre­at­ed sole­ly by the tech­nol­o­gy or in con­junc­tion with one or more nat­ur­al per­sons, will stand to lose vast amounts of invest­ment in their AI indus­tries. We’ve come to a sit­u­a­tion where gov­ern­ments are active­ly seek­ing to help.”

Indeed, the out­comes of Westminster’s Nation­al AI Strat­e­gy could direct­ly affect how AI inven­tors and rights-hold­ers are viewed in the UK.

If it does become nec­es­sary to reform patent law, if only to cov­er future advances in AI, could prece­dents in copy­right law offer guid­ance? Richard John­son, a patent attor­ney and part­ner at Mew­burn Ellis, notes that the Char­tered Insti­tute of Patent Attor­neys has been encour­ag­ing experts to seek a solu­tion down this route.

“Copy­right law already has pro­vi­sions recog­nis­ing that a com­put­er could be involved in the cre­ation of a work that would attract copy­right pro­tec­tion,” he says. “These pro­vi­sions give own­er­ship of that copy­right to the peo­ple who caused the com­put­er to oper­ate to cre­ate the rel­e­vant work.”