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Ryan Abbott’s eight-year quest to put man and machine on an equal footing under international patent law is finally paying off.
Recent decisions by South Africa and Australia that an artificial intelligence machine can be listed as an inventor on a patent put increased pressure on the United States and Europe to resolve debates over this. what does it mean to be an inventor.
“We are entering a new paradigm where not only are people inventing, but people are building artificial intelligence that can invent,†said Abbott, professor of law at the University of Surrey and author of the 2020 book, “The Reasonable Robot: Artificial Intelligence and the Law. “
“Most of the time, there is someone who qualifies as an inventor,†he said. “It will increasingly be the case where someone does not qualify as an inventor, and that is the problem.”
Courts in the US and UK are expected to deliver decisions later this year, and policymakers are gathering information on how to deal with the growing use of AI. Promoting artificial intelligence is a key piece of US law before Congress to increase research funding and better compete with China. AI is identified as one of the “must-have technologies of the future†by the Biden administration.
Putting the wrong name on as the inventor can be costly – rendering the patent unenforceable or invalid, and eliminating a crucial competitive advantage.
Abbott, which has focused on AI and the law since 2013, said companies were unwilling to push the issue if it meant not being able to get legal protection for their products. So he set up the artificial intelligence project and called on the founder of Imagination Engines, Stephen Thaler, to build a machine whose main purpose was to invent.
The result was DABUS, a “creativity machine” that “invented” a beverage container and a “device to attract more attention”. He and a group of lawyers – all working for free – have filed for patents in 17 jurisdictions listing DABUS as the inventor.
“This is a matter of public importance,†Abbott said. “Are there companies that encourage us? Yes, especially companies whose business model uses AI.
Until the decisions at the end of July in South Africa and Australia, Abbott’s team was constantly pushed back. In April, US District Judge Leonie Brinkema told Abbott he had an “uphill battle” to overturn a rejection by the US Patent and Trademark Office. A UK court heard arguments in July on the same issue. The European Patent Office has scheduled a hearing in December.
“If you can get patents from AI-derived innovations, it can influence where you go to invest in that technology,” said Kate Gaudry, patent attorney at Kilpatrick Townsend & Stockton, specializing in technological inventions.
Artificial intelligence uses a machine to perform steps that mimic the work of a human mind but at lightning speed, and promises to transform everything from drug discovery to self-driving cars. Current AI technology is not here yet, although “this area of ​​technology is changing very quickly, so the sooner we say what we’re going to do the better,” Gaudry said.
AI computers can identify new drug molecules or identify new uses for old drugs, but it still takes human researchers and a lot of money to develop those results into a new drug, said Hans Sauer, general counsel. assistant to BIO, the commercial group of biotechnology companies. . Life science companies still see AI as a tool, but if patent offices decide AI has done all the work, it could mean that no patents are granted.
DABUS is a test case, but “it’s more important to get it right, even if it takes time,†Sauer said.
The Congress-mandated National Safety Commission on Artificial Intelligence, led by former Google Chairman Eric Schmidt, has spent two years studying ethical, investment and legal issues surrounding AI. In a March report, he found that the United States “does not have the comprehensive intellectual property policies it needs in the age of AI and is hampered by legal uncertainties in the current doctrine of l ‘US Patent Eligibility and Patentability’.
The complexity of the questions does not mean easy or quick answers. US law clearly states that an inventor must be a human being, and listing AI as an inventor “would require a change in the law and I don’t know if there is an appetite” for it, said former PTO director Andrei Iancu. The U.S. Patent Office has gathered feedback from a range of businesses and individuals on how to approach AI both as an invention and as a potential inventor, and is seeking feedback. on how patent eligibility affects investment.
He also created a dataset of 13.2 million U.S. patents and published applications related to machine learning.
The question of inventor quality is only a small part of the dilemma of how to deal with AI, for example what types of AI software are eligible for a patent and who has the huge amounts of data needed. to “teach” machines. There’s also the question of how reviewers compare the work of humans in a lab to the exponential computing power of a machine to determine if an idea is unique.
“A decision clarifying which AI inventions are eligible for patent would have much more impact than whether an AI could qualify as an inventor,” said Michael Portnov, attorney at Fish & Richardson specializing in patent applications. machine learning.
The answer could be a new type of patent, just as there are for some non-functional plants or designs, Iancu said. Abbott suggests eliminating the name of inventors altogether and simply naming the owner of the patent, which would be an individual or a company.
In 1980, the Supreme Court ruled that living organisms created in laboratories could be patented, a decision widely seen as opening the door to the modern biotechnology industry. Abbott says the DABUS cases could do the same for artificial intelligence.
That 1980 ruling said “that a patent protects anything man-made under the sun,” Abbott said. “Now it will be anything under the sun made by AI.”
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