29 November 2019

AI Inventorship

For a patent application, there is a requirement to name the inventors. While there have been many disputes as to who should be considered the inventor of a given invention, the requirement to name inventors was, until recently, considered to be uncontroversial. The continued rise of artificial intelligence has changed this. If an invention is created by an AI, should the AI be named as the inventor? Should inventions created solely by AI be patentable at all?

In a test case for these issues, a team led by Professor Ryan Abbott at the University of Surrey has filed several patent applications for inventions which they claim were invented by an AI named DABUS (Device for the Autonomous Bootstrapping of Unified Sentience). The inventions in question are a ‘Fractal Container’ and a ‘Neural Flame’.

Patent applications to both of these inventions have been filed with the UK IPO, USPTO and EPO. PCT applications to these inventions have also been filed. The ‘Fractal Container’ patent application relates to a container having a wall with a fractal profile. The fractal profile enables the coupling of multiple containers, improves grip, and facilitates heat transfer into and out of the container. The ‘Neural Flame’ patent application relates to causing a light source to pulsate in a particular manner to attract attention over competing attention sources by triggering human or artificial anomaly detection filters.

Ryan Abbott’s team argues that these inventions were conceived by DABUS. The team says that DABUS only received training in general knowledge in the field, and was not created to solve any particular problem nor trained on any special data relevant to the inventions. The team argues that in creating these inventions, DABUS was not merely used as a tool by a human inventor but instead independently conceived the inventions and identified their salience. The team’s view is that DABUS should be considered to be the inventor and that there is no appropriate human inventor to name in the patent applications.

However, the notion that an AI (or indeed any computer software) could be named as an inventor on a patent conflicts with several existing provisions in patent law, and with the common understanding that the inventor should be a person. For example, the UK Patents Act and the European Patent Convention provide certain rights to inventors, including the right to be mentioned in an application or patent. Rights to appropriate compensation, at least for some inventions, also exist in some jurisdictions. These and other provisions of patent law do not mesh well with the concept of AI inventorship.

The position of the European Patent Office is that it is “a global consensus that an inventor can only be a person” and that “the current state of technological development suggests that, for the foreseeable future, AI is a tool used by a human inventor”. Similarly, the UK IPO recently updated its formalities manual to expressly indicate that “an ‘AI Inventor’ is not acceptable as this does not identify ‘a person’ which is required by law” giving an indication as to how the UK IPO is likely to react to the inventions allegedly invented by DABUS. Nevertheless, the pace of development of AI is rapid and unpredictable, and Ryan Abbott’s team is of the view that DABUS is already capable of independent creation without the involvement of a human inventor. While views differ, the issues go beyond mere academic enquiry, or the formality of what name to include on a form – in the United States in particular, failure to name the correct inventors can lead to a patent being held unenforceable. The questions around AI inventorship thus represent an emerging challenge for the patent system which has yet to be fully resolved.