Can AI Be An Inventor?

The last few months have seen a spate of patent applications filed in different countries listing AI as an inventor. This has led, at last count, to the legal apparatus of four countries to weigh in on the question - with two (the United States and the UK) weighing in against the idea and two (Australia and South Africa) permitting AI as an inventor.

If you read some of the findings, they show that the judges have, appropriately in my opinion, based their decisions on their interpretations of the law as written. This makes sense. However - this question is likely the first of many around the area of AI and new creations. In this article, we highlight some of the tech fundamentals that apply here and raise additional questions that will come shortly thereafter - and why businesses will need answers.

Can AI Invent?

Even if AI cannot be listed as an inventor in a legal sense - do we believe AI can invent? I think so. The Merriam-Webster dictionary defines invent as “to produce (something, such as a useful device or process) for the first time through the use of the imagination or of ingenious thinking and experiment”

Hmm.. If we were saying only imagination and ingenious thinking applied, then maybe AI does not invent. However, inventions are frequently the outcome of experimentation, and in that sense - AI does invent. As examples, AI can create art by combining newly supplied patterns in various ways it has seen patterns combined before. AI can generate code, which implies generating a solution to a problem with that solution manifested as code.

Deepfakes are also a type of creation (albeit frequently a dangerous and damaging one). Deepfakes can in the future create entire movies, synthetic medical data, and more. DABUS, the AI that is at the root of many of these recent legal decisions, was specially crafted to generate combinations of ideas to create new concepts.

Why does it matter?

Now - if we assume AI can invent, why does it matter if AI can be listed as an inventor? Since we can hopefully assume the AI does not care (at least not yet!), why would a business care?

For this, a bit of background on patents may help. Companies protect intellectual property in several ways, patents being one major way. Patents require one or more inventors, who make a legally binding statement that they “created” the invention. The mechanics of patents, at least in the US, require that the inventor list be precise and complete- meaning that any person who contributed to the invention should be listed, and no one who did not contribute should. The company also becomes the assignee of the invention. The IP rights of the company are then protected via this patent.

If an AI creates something that the business wants a patent on - who is the inventor?

One could argue the human (or humans) that created the AI are the inventors of the AI and by extension anything it creates. However, per the above definition, one could also argue the humans would be breaking the law by claiming to be the inventor if they had no awareness of the AI software making this creation. This approach gets even trickier pretty quickly. The AI could have been created years ago and recently learned something new with new data. In this case who is the right human inventor? Is it the person who wrote the original AI or the person who retrained it recently right before it created its invention? What if neither was working at the company when the AI created this invention? What if the AI was created at company A and sold to company B where it made its creation while running on Company B’s computers under the supervision of Company B’s employees? 

As AI becomes more pervasive, in even as simple a form as helping a human explore options by generating experiments, it will have a role in inventions. Companies will want to protect the inventions. There is anecdotal evidence that companies have already been prevented from filing patents when an AI has been involved in the invention’s creation. This can easily become a blocker for businesses.

If two AIs are identical - who is the inventor?

The previous example illustrated why preventing AIs from being listed as inventors can become problematic for companies. Now let's examine the problems that can occur if AI is an inventor. Unlike human brains and learning experiences, which are unique and (so far) not replicable in exact terms, the same is not true of an AI. An AI brain (called a model) resides in a computer file. By merely making a copy of that file - one can create a second AI with the same predictive capabilities. So how does one identify the precise AI that generated the invention? Does it matter?

What about transfer learning?

AIs are also capable of a very powerful technique known as transfer learning - where a second AI can build upon the first and incrementally learn new things. Many complex AIs use this technique to reduce training time and expense.  If such an AI makes an invention, how should the first AI get appropriate attribution? Is it a co-inventor? How would we know if the original AI contributed to the invention?

Is an AI a person in other respects?

If you look at the decisions that have been made so far regarding AI as patent inventors - a lot of it came down to whether the judges in question considered an AI to be equivalent to a natural person. There are other implications of such a decision. If we determine an AI to be a natural person for the purpose of inventions, what else are they a natural person for? Do other aspects we attribute to people, such as rights of ownership, responsibilities and accountability, also apply?

In Summary

As AIs become more capable - one can expect the number of unique AI based creations to grow, whether they are art, books, poetry, code, movies, etc. For businesses, more and more will rely on either AIs, or combinations of humans and AIs, to generate new inventions. If these inventions cannot be legally protected - the businesses will suffer. The question of who owns those creations, for any definition of the word ownership - is a serious business question, and one that the laws will need to ultimately answer.

So - whether you agree with the US/UK or Australia/South Africa - it is fair to say that the question being raised by these filings is  critically important. The right answer however may not be yes or no - to AI being credited as a human would be credited. Over time, the better answer may be to recognize that AIs can invent, and modify the patent law for practical accommodations of AI involvement in patents.

Source: https://www.forbes.com/sites/nishatalagala/2021/09/28/can-ai-be-an-inventor/?sh=69e42dc956db