Can Artificial Intelligence be the Sole Inventor of a Patent?

Everyday people use technology driven by artificial intelligence (“AI”) without realizing it. Common phone applications such as mobile banking, ride sharing, predictive internet searching, and music recommendations all depend on AI. As technology has continually evolved, so too have peoples’ lives and undoubtedly the laws regulating such technology. We are presently are faced with the question of how intellectual property laws should adapt when an AI algorithm autonomously creates a patentable idea. Accordingly, the United States Patent and Trademark Office (the “USPTO”) released a request for comments from the public regarding whether AI should be listed as a patent inventor.

Under current patent law, an inventor must be a person who presents an idea that is novel, useful, and non-obvious. However, this standard of patentability is now challenged by two recently filed patents. A University of Surrey professor filed two patents listing AI as the sole inventor of a “beverage container based on fractal geometry” and a device used in “attracting enhanced attention that may help with search and rescue operations.” The “person” requirement in United States patent law was established to prevent corporate inventorship by big corporations that invest in research and development. This doctrine was created more than twenty years ago when the capabilities of computers were far more rudimentary and without consideration of AI. Thus, there is a need to update patent law to address issues arising in today’s world, including inventions by AI.

Maintaining the person requirement and crediting inventorship either to the creator of AI or to the corporation which owns the AI may potentially lead to several issues including, but not limited to, discouragement of inventions and contradictory violation of other provisions of patent law that require a person to have “himself invent the subject matter sought to be patented.” Inventors advancing AI technology would not be incentivized to improve and create new technologies. Creating any new technology would leave them in a dilemma, where if they take the credit for the AI’s invention, they are violating one requirement, whereas if they attempt to credit AI as the inventor, the invention would not be patentable under current intellectual property laws. On the other hand, if the owner of an AI algorithm is allowed to claim inventorship for the AI’s autonomous invention, then this could also discourage traditional inventors and set a bad precedent of claiming false inventorship.

Thus, the need for addressing and updating patent laws is imminent to cope up with current and future technological advancements. Current patent laws do allow joint inventorship where “inventors may apply for a patent jointly even though (1) they did not physically work together or at the same time, (2) each did not make the same type or amount of contribution, or (3) each did not make a contribution to the subject matter of every claim of the patent.” Notably, there still is a minimum contribution requirement.

Owners of AI could potentially use the exception of when “joint inventor refuses to join in an application for patent or cannot be found or reached after diligent effort, the application may be made by the other inventor on behalf of himself and the omitted inventor.” This is a risky solution because there is a possibility of hundreds of such patents being filed increasing the burden on patent examiners. On the contrary, AI should not be the sole inventor and owner. Laws have to create authority and accountability. Thus, a potential solution under current patent law is to allow AI to be listed as inventor while assigning ownership rights to the company or individual owner of the AI algorithm.

By its very nature, patent law subject matter is innovative, and this requires that the law continuously adjusts to new emerging technology. Patent laws have had to adjust in the past for this very reason. Computer programs, which are now considered so fundamental to countless technology, were once seen as not patentable. As the importance of computer programs became indisputable, the USPTO necessarily expanded statutory interpretation of copyright law to include computer programs as literary works. As technologies like quantum computers may drastically increase computing power, AI inventorship will become increasingly relevant. Therefore, patent laws should adjust to recognize AI inventorship.

Madiha Chhotani and Sarah Chun

September 22, 2019