Can an AI system invent? Does the tech have the intellectual right?

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AI patentability — do inventors have to be human? Diego Black, partner at European intellectual property firm, Withers & Rogers, dissects the much talked about topic

A group of academics and inventors have teamed up to challenge global thinking on AI-generated inventions by naming the AI system as the ‘inventors’ on two patent applications. But will they be successful in their attempts?

Led by Professor Ryan Abbott of the University of Surrey, the academics involved in the project have been working alongside the Missouri-based inventor of Dabus AI, to seek patent protection for two innovations — an interlocking food container, which is easy for robots to handle, and a warning light that flickers in a rhythm similar to neural activity, which makes it difficult to ignore. The patent applications have been filed in the UK, Europe and the US.

Developed by Stephen Thaler in 1994, Dabus AI or ‘The Creativity Machine’ as it is more commonly known, is a computational paradigm which claims to replicate human cognition. It can create novel patterns of information and adapt to different scenarios without human intervention. Among its outputs, the machine has been credited with inventing a prominent design aspect of the Oral-B CrossAction toothbrush.

Other examples of creative computing include a method for monitoring traffic control systems, developed by the Urban Software Institute and described in patent EP3144918B1. Designed to improve traffic flow, the system includes multiple traffic lights that predict future signal status using a machine-learning algorithm. In a further example, an AI-system developed by IBM, known as ‘Watson’, uses algorithms to generate novel ideas based on pre-determined parameters. In its latest incarnation, Watson can generate innovative recipes based on user preferences and the predicted quality of the dish.

Despite the undeniable ingenuity of such outputs, the question of who would be considered the inventor, and who owns these inventions is set to be challenged. There is presently a consensus inherent in patent law globally that the owner of a patent is the inventor unless the rights have been assigned to another person, entity, or their employer. However, the law also requires that the inventor must be a person who has contributed in some material way to the invention’s conception. Therefore, under current law, only a human is capable of being named as inventor and the AI system is a tool they have utilised to facilitate their innovation.

The academics and inventors involved in the Artificial Inventor Project believe that this stance is outdated, and that such AI systems should be named as inventors with the owner of the machine being named as the owner of the patent. If indeed, AI systems such as The Creativity Machine seem to be capable of ‘inventing’, without any form of human intervention this could lead to patents without ‘inventors’.

Some innovators may be concerned that the current lack of clarity regarding the patentability of AI-based inventions could become a barrier to progress. They should be reassured however that case law shows that AI inventions are entirely capable of securing patent protection, as long as they can demonstrate their ability to solve a technical problem. The only issue which remains is whether the law will change in relation to the rights of ownership and inventorship when AI or machine learning was used to help ‘create’ the claimed invention.

Faced with this potential uncertainty regarding rights of ownership and inventorship, it is possible that some innovators could choose to keep their ideas as ‘trade secrets’ rather than share them with the world via the patent system. Over time, this could begin to hold back R&D activity and make it harder for innovators to secure a market-leading position. However, as the law presently stands for the majority of patent applicants this uncertainty would appear to be largely academic.

To make the most of AI-based inventions, for the benefit of society as a whole, the issues surrounding rights of ownership must be resolved sooner rather than later.

Written by Diego Black, partner at European intellectual property firm, Withers & Rogers. He specialises in advising innovation-led businesses in the fields of consumer electronics and computing

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