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Peter Finnie

Partner at international IP law firm Gill Jennings & Every

Should AI “inventors” have the same rights as their human counterparts?

Judgement day is coming. Not in a Terminator-esque sense – not yet, at least – but at the hands of the European Patent Office (EPO) and the United States Patent and Trademark Office (USPTO). The patent governing bodies have become embroiled in a contentious patent filing that, until now, had only been a source of debate.

A team of legal and academic experts in the field have formed a campaign called The Artificial Inventor Project which aims to seek “intellectual property rights for the autonomous output of artificial intelligence”. Their most recent efforts to press ahead with their revolutionary cause came to the fore in a case that sought to name DABUS (Device for the Autonomous Bootstrapping of Unified Sentience) as the inventor on two patent filings.

At present, the USPTO and the EPO’s stances on this remain rock solid: that only “natural persons” can be named as inventors on patent filings. An AI entity is not a natural or a legal person and so can’t be named as an inventor in the traditional sense and can’t own intellectual property.

The Artificial Inventor Project’s campaign is pushing boundaries, having propelled further conversations around how we develop and adapt legal frameworks for such groundbreaking yet hard-to-regulate technologies as AI, claiming the current process is “outdated”. And as AI and machine learning continue to be incredibly fertile fields – attracting countless innovators, companies and investors for their excitement, potential, open inventiveness and space to grow – the conversation will no doubt become even trickier to navigate.

However, when it comes to the limits of AI within today’s patent law, the USPTO and the EPO have no wriggle room to accommodate the trend towards AI-assisted innovation where AI is used as a tool to create new inventions.

Robots will be robots, not humans

The reality is, numerous firms are already employing AI to help them develop new patentable inventions, for example in the fields of drug repurposing and consumer electronics. These same firms seem to agree for now at least that, in each case, the AI platform is not an inventor. Nevertheless, the issue as to whether the AI platform can be considered an inventor is a real one as it goes to the heart of the patent system: to reward human innovation.

AI as we’ve now come to think of it – what scientists call artificial general intelligence – doesn’t actually exist yet, and it won’t do for at least another eight decades according to researchers. What innovators have really developed is an application of machine learning: a mathematical tool that still requires quality intellectual input from the humans wielding it.

The inventions derived from machine learning will always need the selection of the right training data which is fed into an arrangement of algorithms designed and arranged by a human. Then the machine’s outputs will then need to be interpreted by – you guessed it – a human.

For the foreseeable future, computers will continue to make calculations based on whatever’s put into them; they essentially map out the dots for humans to join up and form a clear picture with. It’s for this reason that AI can only be considered a tool and not an inventor in itself.

Labelling AI as an inventor and thus attempting to anthropomorphise it is simply our way of trying to better understand the technology on a human level.

Regulators still need to address the AI issue

That being said, the fact that this debate has gained traction shows it is not something regulators can afford to stick their heads in the sand about. Indeed, EU policy makers are slowly beginning to face the legal conundrum head on, with the European Parliament issuing a white paper in 2017 exploring the legal status of “electronic persons”. But this only takes a look into the distant future of those hard-to-navigate questions that will arise around who will be liable for the mistakes of autonomous beings, whether they have any quasi-human rights and more.

The UK has an even longer way to go. Our patent system is as outdated as AI inventorship proponents claim, the last law having been enacted around 40 years ago. The Patent Offices are far from ready for the next step in computer implemented technologies.

AI might not be ready to take the title of inventor just yet, but global patent offices must begin looking for new means to do what they were established to do: encourage the development of new inventions and open up avenues to knowledge-sharing. Machines have a vital role to play in the creative and collaborative processes at the heart of innovation and that itself must be acknowledged and protected. For now though, patents should remain manmade.

Peter Finnie is a partner at international IP law firm Gill Jennings & Every