March 2, 2022

Clause 8: Professor Ryan Abbott on Why Patent Law Should Recognize AI Inventors

Ryan Abbott

If listing artificial intelligence (AI) machines as inventors on patents sounds like science-fiction to you, Professor Ryan Abbott is ready to make the case that it’s a very real issue.

Abbott became interested in patents after becoming a medical doctor and obtaining a law degree from Yale Law School. He then noticed that scientists were starting to use AI to identify problems and solutions — and wondered about the legal ramifications from a patent perspective. Shouldn’t the AI be identified as an inventor, the same way a human would be? Abbott clearly believed that was the case.

However, there was no precedent for any patent system allowing for an AI machine to be listed as an inventor. In fact, he discovered that companies had to forego obtaining patent protection because they were unable to do that.

To Abbott, this was ludicrously old-fashioned. AI is already used to develop new products. And, as the technology improves, it will naturally play a greater role in coming up with new inventions.

Being a lawyer, Abbott decided to challenge the status quo in court. He teamed up with Dr. Stephen Thaler, who built an AI nicknamed DABUS (Device for the Autonomous Bootstrapping of Unified Sentience) that generates inventions. Under their Artificial Inventor Project, Abbott and Thaler have filed patents for two of DABUS’ inventions in patent offices around the world, naming the AI as the inventor. When patent offices do not allow for an AI machine to be named as an inventor, they fight in court.  Although they’ve faced an uphill battle, they were granted a DABUS patent in South Africa and an Australian judge ruled that AI machine can be recognized as an inventor.  As result of the project, policy makers around the world are increasingly recognizing that they must tackle the issue of AI inventorship.

“[We did this] to start a discussion about what to do with this sort of thing, rather than [simply listening to] people whispering about it,” Abbott reflects. “Twenty years from now… you don’t want to find out that you can’t protect this stuff.”

Abbott makes his case for the skeptics: identifying AI as the inventor on patents is morally and commercially important. He says:

“There isn’t a statute that says, If you own a machine that makes an invention, you own that invention — but it is consistent with common law rules or property ownership. If I own a 3D printer that prints a beverage container for me, I own that. So why not one that makes a patentable design for me?”

Key Points

  • Granting patents for inventions by machines can help humans. AI doesn’t care if its work isn’t acknowledged — but that doesn’t make awarding patents to people who own machines redundant. Identifying AI as an inventor incentivizes people to build or buy machines that can create new things, which is the point of the patent system. Also, if the AI played a key role, naming it as the inventor is a more transparent choice.
  • We’re overdue for discussions about the role of AI in inventions. It’s only relatively recently that AI technology has evolved to become capable of inventing new products. But even as it becomes more common, many patent lawyers advise clients that use this technology to just put their own name on the patents. They argue it’s unlikely that anyone will be able to prove a machine was more responsible for the invention than they were. However, this could come back to bite them if the law changes to allow AI inventors: putting an incorrect inventor on a patent can render it unenforceable in the U.S.
  • Expect more AI involvement in inventions. Not only does AI that’s capable of inventing things exist, it’s starting to generate products that are worth money. Look at the world of copyrighting: people use AI to create non-fungible tokens (NFTs) and other types of digital art, which sell for thousands of dollars. Suddenly, AI connects to copyright cases, and patents will be next.

Abbott on why recognizing AI inventorship is important:

“This behavior is something the patent system really ought to encourage. Because if we can build machines that can invent, all the better for society in terms of the purpose of the patent system, which is generating more socially valuable output. If we believe in the patent system as a means of incentivizing these behaviors, the machine doesn’t get a patent, but the owner of the machine would get a patent. This would encourage people to make and use these machines. Thus, we get more inventions, which is really the whole purpose of everything.”

Abbott on why U.S. courts should allow AI machines to be named as inventors on patents: 

“The U.S. never says an inventor needs to be an actual person. It uses words like individual. But individual sometimes means an actual person and sometimes it doesn’t. It is entirely consistent with the purpose of the Patent Act to interpret that an individual in the context of an invention could be a machine… There is, in our view, no reason to take an overly narrow, textualist interpretation of it. For example, whomever in 35 U.S.C. 271 — which refers to infringement — can refer to anything, including a state or a corporation, as something that could commit infringement. If whomever can refer to a company or a state, I see no reason why individual couldn’t conceivably apply to a machine.”

Abbott on how mushy inventorship is as a concept:

“One of the things that’s interesting about this case, even for people who aren’t in AI and IP, is it illuminates how mushy inventorship is as a concept. We all kind of think we know it when we see it, but it can get awfully tricky when you have teams of people doing different things, and [you have to determine]: Who really contributed in an inventive way, and who was really just a skilled technician?”

Abbott on why just naming people who are somehow involved with an invention is not the right approach: 

“There was a European Commission report not long ago saying that AI wasn’t really inventing because there was always a person causally involved with the invention. And that is certainly true. [But] being causally involved in an invention is not grounds for being an inventor under U.S. or any patent law I’m familiar with. But some people are saying, There’s no AI invention because there are people involved. Well, yes, but is there someone who was doing the traditional act of invention?”

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