Solving the Collision - Artificial Intelligence and the US Patent Law Perspective

The aim of this note is not to resolve the dispute whether the US patent system supports the US innovation or just the opposite. Its intent is to put forward a view that there is no empirical evidence that the US patent system serves to increase or decrease the US innovation. Since there is no strong evidence supporting only one perspective, it is argued that the US patent system should remain. [1] In addition, this note recognises the shortcomings of the current regulatory approach AI.

The current US patent system does not provide clear answers to the concerns related to AI’s inventive capabilities. This is, who or what should hold patent rights to inventions generated by AI independent of human intervention? Or who or what should be responsible for its autonomous acts of infringement of patent rights of others. At present AI is the most important technology field because of its implications. These are the strong ability to create patentable inventions and infringe the patent rights of others. However, due to the nature of said ‘disruptive technology’, there is the need of governing both AI’s advantages and disadvantage for sustaining the US patent system and innovation. Patents represent important means to disclose inventions generated by autonomous AI. Despite this, and despite the fact that the US Patent Office has already granted patent for inventions by AI [2], the US Patent Office has never explicitly considered the issue of AI inventorship and ownership.

The fact that AI was the true creator of the patentable invention was hidden from the US Patent Office. [3] Drawing on the currently existing US patent provisions this type of patents should not have a stand in the first place. This note argues that the increase likelihood of AI inventing more than ever before will not stop the AI owners from patenting work generated autonomously by AI. On the contrary, it is argued that it may lead AI owners to hide the true identity of the creators of patentable inventions. This in turn will be a breach of US patent law. Any breach of the US patent will introduce a danger of its destabilisation. Any destabilisation of the US patent system may introduce challenge to the inventiveness and competitiveness of the US.

Furthermore, it is also argued, that AI is something fundamentally different from basic type of software due to AI's autonomous character. As a consequence, it can autonomously generate patentable invention and infringe it hence, as argue of by this note, patents are deemed appropriate for this type of invention. This is the same reason why this thesis argues for the grant of dependent legal personhood to AI which would allow it to become the owner of its own inventions and be responsible for its autonomous acts of infringements of the patent rights of others.

In depth analysis of dependent legal personhood and an appropriate model for its existence will be argued by the author in her next post.

Watch this space!

References: (OSCOLA style of referencing)

1. See for example, MK Ohlhausen, ‘The Case for a Strong Patent System’ Remarks at the “The Economic Contribution of Technology Licensing” (8th June 2016) Conference USPTO’s Global Intellectual Property, United States of America Federal Trade Commission <www.ftc.gov/system/files/documents/public_statem ents/958603/160608strongpatentsystem.pdf> accessed 21 April 2018; M Loosemore, Innovation, Strategy and Risk in Construction: Turning Serendipity Into Capability (Routledge 2013) 182. VG Kondalkar, Organization Effectiveness and Change Management (PHI Learning Pvt 2013) 63; IN Dubina and EG Carayannis, Creativity, Innovation, and Entrepreneurship Across Cultures: Theory and Practices (Springer 2016) 97.

2. JR Koza and MA Keane and MJ Streeter and W Mydlowec and J Yu and G Lanza, Genetic Programming IV: Routine Human-Competitive Machine Intelligence (Springer Science & Business Media 2006) 50.

3. The Patent Office granted another patent for a computational invention on January 25, 2005. See J Keats, ‘John Koza Has Built an Invention Machine’ (Popular Sci, 18 April 2006) <www.popsci.com/scitech/article/2006-04/john-koza-has-built-invention-machine> accessed 21 April 2018;

For more ee, for example, A Katwala, ‘How AI is helping engineers invent new ideas’ (Imeche, 3 November 2017) <www.imeche.org/news/news-article/how-ai-is-helping-engineers-invent-new-ideas> accessed 21 April 2018;

E Schmidt, ‘Eric Schmidt and Jared Cohen on Technology in 2016’ (The Time, 21 December 2015 < http://time.com/4154126/technology-essay-eric-schmidt-jared-cohen/> accessed 21 April 2018;

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