Computers using artificial intelligence are discovering medicines, designing better golf clubs and creating video games. But are they inventors?<\/p>\n
Patent offices around the world are grappling with the question of who — if anyone — owns innovations developed using AI. The answer may upend what\u2019s eligible for protection and who profits as AI transforms entire industries.<\/p>\n
\u201cThere are machines right now that are doing far more on their own than to help an engineer or a scientist or an inventor do their jobs,\u201d said Andrei Iancu, director of the U.S. Patent and Trademark Office. \u201cWe will get to a point where a court or legislature will say the human being is so disengaged, so many levels removed, that the actual human did not contribute to the inventive concept.\u201d<\/p>\n
U.S. law says only humans can obtain patents, Iancu said. That\u2019s why the patent office has been collecting comments on how to deal with inventions created through artificial intelligence and is expected to release a policy paper this year. Likewise, the World Intellectual Property Office, an agency within the United Nations, along with patent and copyright agencies around the world are also trying to figure out whether current laws or practices need to be revised for AI inventions.<\/p>\n
The debate comes as some of the largest global technology companies look to monetize massive investments in AI. Google\u2019s chief executive officer, Sundar Pichai, has described AI as \u201cmore profound than fire or electricity.\u201d Microsoft Corp. has invested $1 billion in the research company Open AI. Both companies have thousands of employees and researchers pushing to advance the state of the art and move AI innovations into products.<\/p>\n
International Business Machines Corp.\u2019s supercomputer Watson is working with the Massachusetts Institute of Technology on a research lab to develop new applications of AI in different industries, and some of China\u2019s biggest companies are giving American companies a run for their money in the field.<\/p>\n
The European Patent Office last month rejected applications by the owner of an AI \u201ccreativity machine\u201d named Dabus, saying that there is a \u201cclear legislative understanding that the inventor is a natural person.\u201d In December, the U.K. Intellectual Property Office turned down similar petitions, noting AI was never contemplated when the law was written.<\/p>\n
\u201cIncreasingly, Fortune 100 companies have AI doing more and more autonomously and they\u2019re not sure if they can find someone who would qualify as an inventor,\u201d said Ryan Abbott, a law professor at the University of Surrey in England. \u201cIf you can\u2019t get protection, people may not want to use AI to do these things.\u201d<\/p>\n
Abbott and Stephen Thaler, founder of St. Louis-based Imagination Engines Inc., filed patent applications in numerous countries for a food container and a \u201cdevice for attracting enhanced attention,\u201d listing Thaler\u2019s machine Dabus as the inventor.<\/p>\n
The goal, Abbott said, was to force patent offices to confront the issue. He advocates listing the computer that did the work as the inventor, with the business that owns the machine also owning any patent. It would ensure that companies can get a return on their investment, and maintain a level of honesty about whether it\u2019s a machine or a human that\u2019s doing the work, he said.<\/p>\n
Businesses \u201cdon\u2019t really care who\u2019s listed as an inventor but they do care if they can get a patent,\u201d Abbott said. \u201cWe really didn\u2019t design the law with this in mind, so what do we want to do about it?\u201d<\/p>\n
Still, to many AI experts and researchers, the field is nowhere near advanced enough to consider the idea of an algorithm as an inventor.<\/p>\n
\u201cListing an AI system as a co-inventor seems like a gimmick rather than a requirement,\u201d said Oren Etzioni, head of the Allen Institute for Artificial Intelligence in Seattle. \u201cWe often use computers as critical tools in generating patentable technology, but we don\u2019t list our tools as co-inventors. AI systems don\u2019t have intellectual property rights — they are just computer tools.\u201d<\/p>\n
The current state of the art in AI should put this question off for a long time, said Erik Brynjolfsson, director of the MIT Initiative on the Digital Economy, who suggested the debate might be more appropriate in a \u201ccentury or two.\u201d Researchers are \u201cvery far from artificial general intelligence like \u2018The Terminator\u2019.\u201d<\/p>\n
It\u2019s not just who\u2019s listed as the inventor that is flummoxing patent agencies.<\/p>\n
Software thus far can\u2019t follow the scientific method — independently developing a hypothesis and then conducting tests to prove or disprove it. Instead, AI is more often used for \u201cbrute force,\u201d where it would simply \u201cchurn through a bunch of possibilities and see what works,\u201d said Dana Rao, general counsel for Adobe Inc.<\/p>\n
\u201cThe question is not \u2018Can a machine be an inventor?\u2019 it\u2019s \u2018Can a machine invent?\u201d\u2019 Rao said. \u201cIt can\u2019t in the traditional way we view invention.\u201d<\/p>\n
A patent is awarded to something that is \u201cnew, useful and non-obvious.\u201d Often, that means figuring out what a person with \u201cordinary skill\u201d in the field would understand to be new — for instance, a knowledgeable laboratory researcher. That analysis gets skewed when courts and patent offices have to compare the work of a software program that can analyze an exponentially greater number of options than even a large team of human researchers.<\/p>\n
\u201cThe bar is changing when you use AI,\u201d said Kate Gaudry, a patent lawyer with Kilpatrick Townsend & Stockton in Washington. \u201cHowever this is decided, we have to be consistent.\u201d<\/p>\n
Iancu likened it to debates a century ago over awarding copyrights to photographs taken with a camera.<\/p>\n
\u201cSomebody must have created the machine, somebody must have trained the machine and somebody must have pushed the \u2018on\u2019 button,\u201d he said. \u201cDo we think those activities are enough to count as human contributions to the invention process? If yes, the current law is enough.\u201d<\/p>\n
Still, Rao said, there needs to be some way to help companies using AI to protect their ideas. That\u2019s particularly true for copyrights on photographs created through a type of machine learning systems known as Generative Adversarial Networks.<\/p>\n
\u201cIf I want to create images to sell them, there needs to be ways of determining ownership,\u201d Rao said.<\/p>\n
Abbott said one option would be similar to U.K. law where computer-generated artistic works are given a shorter copyright term than those created by a human. The U.S. requires copyright owners to be human, and famously denied a registration request on behalf a macaque monkey that had taken a \u201cselfie\u201d with a British nature photographer\u2019s camera.<\/p>\n
The evolution of machine learning and neural networks means that, at some point, the role of humans in certain types of innovation will decrease. In those cases, who will own the inventions is a question that\u2019s critical to companies using AI to develop new products.<\/p>\n
Iancu said he sees AI as full of promise, and notes that agencies have had to address such weighty questions before, such as genetically modified animals created in a lab, complex mathematics use for cryptography and synthetic DNA.<\/p>\n
\u201cIt\u2019s one of these things where hopefully, the various jurisdictions around the world can discuss these issues before it\u2019s too late, before we have to play catch up,\u201d Iancu said.<\/p>\n
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