Dr. Christian E. Mammen is a partner with Womble Bond Dickinson. He leads the firm’s US IP Litigation practice and is managing partner of its San Francisco office. Chris maintains an active litigation practice, which includes representation of companies in artificial-intelligence-related IP disputes. He also speaks and writes frequently on AI and IP related issues. Chris has held academic positions at the University of Oxford Faculty of Law, the University of California Hastings, Berkeley Law School, and Stanford Law School. His chapter, “AI as Inventor,” is included in the Cambridge Handbook of Artificial Intelligence, published this month by Cambridge University Press.
The August 2019 announcement that two patent applications had been filed naming an artificial intelligence (AI) algorithm as an inventor in the United States and a dozen other countries was regarded as disruptive and profound at the time. It was one of the hot topics in patent law during those last few months before the pandemic. But since then, given all the other crazy and disorienting stuff that has happened in the world, we have become desensitized to the question, even if it is just as radical and important today. To be sure, the U.S. Court of Appeals for the Federal Circuit’s August 5 ruling that an “inventor” must, under the Patent Act, always be a human being, would seem to definitively resolve the question. As a matter of existing and clearly settled law, Stephen Thaler’s AI machine, DABUS, cannot be a named inventor on his applications for a fractal-shaped beverage container and a neural flame, like we always thought in the Before Times. It’s time to relegate this parlor-game discussion to the same recycle bin as Beeple’s non-fungible token (NFT), The Tiger King, and so many other viral distractions. Or, perhaps, not so fast.