The USPTO says no. No human, no patent.
Most of the time, artificial intelligence, or AI, is simply a tool that helps the inventor—for example, by synthesizing enormous data sets to find promising drugs or discover new materials. But what would happen if it were fully responsible for the act of invention itself?
In August of 2019, AI experts filed patents for two inventions—a warning light and a food container—on behalf of Stephen Thaler, CEO of Imagination Engines.
Instead of listing a human author on the applications, the inventor was listed as DABUS, an AI system that Thaler spent over a decade building. DABUS AI came up with the innovations after being fed general data about many subjects. Thaler may have built DABUS, but he has no expertise in creating lights or food containers, and wouldn’t have been able to generate the ideas on his own. DABUS itself is the rightful inventor.
Application No. 16/524,350 was filed listing DABUS as the inventor and identifying DABUS as an “artificial intelligence” that “autonomously generated” the invention. Stephen Thaler created DABUS, then DABUS created the invention. Thaler then filed as the applicant.
Who is an “inventor?”
However, the USPTO took a different stance in the “inventor.” When up for review, the examiner refused to examine the patent and the PTO Commissioners Office has confirmed the refusal. Since DABUS is not human, it cannot be granted a patent.
Regarding “who” can be an inventor, the America Invents Act, 35 U.S.C. § 100 defines an inventor as, “the individual or, if a joint invention, the individuals collectively who invented or discovered the subject matter of the invention.” Those who support providing inventorship rights to AI argue that the term “individual” allows for a broad interpretation and does not necessarily exclude AI from taking credit as an inventor. Further, they argue AI has the functionality to fulfill the act of conception, supporting inventorship, and denying such rights to AI could deter AI developers and hinder innovation.
But critics argue that crediting AI with the invention may deter developers from creating the AI itself.
In denying the DABUS petition, PTO Commissioner’s Office suggests that the word “Whoever” in Section 101 indicates a human “natural person.” The Federal Courts have repeatedly held that we need to find the “individuals” who are the inventors, and not simply point to a collective organization like a corporation or government entity. However, the PTO could not point to a precedent where the claimed inventor is a thinking non-human machine.
Although Thaler created DABUS, he feels that he cannot properly name himself as the inventor. The PTO appears to suggest the resulting answer — no human inventor; no patent.
The future of AI patents
But if humans can’t be listed as inventors because they weren’t intimately involved, and the AI can’t be listed as an inventor either, then the invention may not be patentable at all. This could be problematic. It could prevent companies from investing money in AI technologies and prevent breakthroughs in important areas like drug discovery. While there may not be much social good to be gained by giving rights to an AI, there is good to be gained by changing intellectual property law to acknowledge its contribution.