.Artificial Inventors: When there’s an AI assist, who gets the patent?

The ability of artificial intelligence models to generate text and images that look like the work of human beings has captured public attention as the latest and possibly greatest revolution in technology—in areas ranging from medical diagnosis to clean energy.

How do we prevent AI from discriminating, for example, and how do we protect privacy and handle an increasingly automated workplace?

Protections for intellectual property—including patents and copyrights—have long been enshrined in U.S. law. They incentivize innovation by giving inventors and their investor-partners an exclusive property right in their creations.

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The U.S. Patent and Trademark Office and courts alike have held that under existing law, patent applications must identify an inventor and that inventors must be human. That makes sense. Even in the world of AI, the reality is that humans are always involved. Current AI systems do not operate entirely autonomously.

Yet, current laws and policies in the United States are unclear about what exactly the human element is.

One open question is whether it’s sufficient for patentability purposes for a human to recognize and appreciate that the AI output will work as intended. Another is whether disclosing the involvement of AI in a patent application will jeopardize obtaining or enforcing IP protection. And, can those who design or train the AI be deemed inventors of any inventive output from the AI?

The answer is that such inventions should be patentable, and humans generating them should be deemed inventors. After all, AI is simply an advanced tool, and humans have always used tools to invent—for example, the microscope and the computer.

Plenty of thorny issues surround AI adoption. Policymakers should start by tackling patent laws and rules head-on. Leaders in both the tech and life science industries, who are often at odds over IP policy, are united in support of bringing clarity to these issues. Now is the time.

Rama Elluru works at the National Security Commission on Artificial Intelligence. Andrei Iancu previously served as the undersecretary of commerce for intellectual property and director of the U.S. Patent and Trademark Office.


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