Artificial intelligence is breaking patent law

From Nature:

In 2020, a machine-learning algorithm helped researchers to develop a potent antibiotic that works against many pathogens. Artificial intelligence (AI) is also being used to aid vaccine development, drug design, materials discovery, space technology and ship design. Within a few years, numerous inventions could involve AI. This is creating one of the biggest threats patent systems have faced.

Patent law is based on the assumption that inventors are human; it currently struggles to deal with an inventor that is a machine. Courts around the world are wrestling with this problem now as patent applications naming an AI system as the inventor have been lodged in more than 100 countries1. Several groups are conducting public consultations on AI and intellectual property (IP) law, including in the United States, United Kingdom and Europe.

If courts and governments decide that AI-made inventions cannot be patented, the implications could be huge. Funders and businesses would be less incentivized to pursue useful research using AI inventors when a return on their investment could be limited. Society could miss out on the development of worthwhile and life-saving inventions.

Rather than forcing old patent laws to accommodate new technology, we propose that national governments design bespoke IP law — AI-IP — that protects AI-generated inventions. Nations should also create an international treaty to ensure that these laws follow standardized principles, and that any disputes can be resolved efficiently. Researchers need to inform both steps.

Machines that are able to invent were not a consideration for drafters of the world’s first patent legislation, the Venetian Patent Statute of 1474. Nor were they contemplated in the 1883 Paris Convention for the Protection of Industrial Property, which established the foundations of the international patent system. Even by 1994, AI-generated inventions were still almost unheard of when the World Trade Organization finalized its Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS). The 1883 and 1994 treaties mandate international patent standards today.

The TRIPS agreement protects “any inventions, whether products or processes, in all fields of technology, provided that they are new, involve an inventive step and are capable of industrial application” . In its wording, ‘inventions’, ‘new’, ‘inventive step’ and ‘capable of industrial application’ are terms of art, each with a legal definition. In essence, an object is not patentable if any of these requirements is not met (see ‘What is patentable?’).

What is patentable?

Generally, an invention must meet each of the following requirements before it can be patented.

• An invention made by one or more inventors. This includes products, processes or methods in almost all fields of technology.

• Novel. The invention does not already exist.

• Inventive step or non-obvious. The invention would not be obvious to a ‘person skilled in the art’ who has ‘common general knowledge’ in that field.

• Capable of industrial application or utility. The invention can be made or used in industry, does as is claimed and/or has economic significance.

All 164 World Trade Organization members must comply with these principles, standardized by the 1994 Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS).

. . . .

New technologies have challenged the system before. High-profile cases have tested whether genetic sequences, human-made living organisms and other objects could be patented. The central legal question in these cases was whether they were inventions at all. For example, after a years-long court battle between the US Association for Molecular Pathology (among others) and molecular-diagnostics firm Myriad Genetics in Salt Lake City, Utah, the US Supreme Court concluded in 2013 that isolated human gene sequences were unpatentable because genetic information is a product of nature rather than a human invention.

Inventions generated by AI challenge the patent system in a new way because the issue is about ‘who’ did the inventing, rather than ‘what’ was invented. The first and most pressing question that patent registration offices have faced with such inventions has been whether the inventor has to be human. If not, one fear is that AIs might soon be so prolific that their inventions could overwhelm the patent system with applications.

Another challenge is even more fundamental. An ‘inventive step’ occurs when an invention is deemed ‘non-obvious’ to a ‘person skilled in the art’. This notional person has the average level of skill and general knowledge of an ordinary expert in the relevant technical field. If a patent examiner concludes that the invention would not have been obvious to this hypothetical person, the invention is a step closer to being patented.

But if AIs become more knowledgeable and skilled than all people in a field, it is unclear how a human patent examiner could assess whether an AI’s invention was obvious. An AI system built to review all information published about an area of technology before it invents would possess a much larger body of knowledge than any human could. Assessed against all knowledge, almost everything would seem obvious4. If everyone has access to such AI tools in future, then the ‘inventive step’ criterion of patentability would be close to impossible to achieve, and almost nothing would be patentable. A complete rethink would be required.

Illustration by Ana Kova

In 2020, a machine-learning algorithm helped researchers to develop a potent antibiotic that works against many pathogens (see Nature https://doi.org/ggm2p4; 2020). Artificial intelligence (AI) is also being used to aid vaccine development, drug design, materials discovery, space technology and ship design. Within a few years, numerous inventions could involve AI. This is creating one of the biggest threats patent systems have faced.

Patent law is based on the assumption that inventors are human; it currently struggles to deal with an inventor that is a machine. Courts around the world are wrestling with this problem now as patent applications naming an AI system as the inventor have been lodged in more than 100 countries1. Several groups are conducting public consultations on AI and intellectual property (IP) law, including in the United States, United Kingdom and Europe.

If courts and governments decide that AI-made inventions cannot be patented, the implications could be huge. Funders and businesses would be less incentivized to pursue useful research using AI inventors when a return on their investment could be limited. Society could miss out on the development of worthwhile and life-saving inventions.

Rather than forcing old patent laws to accommodate new technology, we propose that national governments design bespoke IP law — AI-IP — that protects AI-generated inventions. Nations should also create an international treaty to ensure that these laws follow standardized principles, and that any disputes can be resolved efficiently. Researchers need to inform both steps.

Who, not what

Machines that are able to invent were not a consideration for drafters of the world’s first patent legislation, the Venetian Patent Statute of 1474. Nor were they contemplated in the 1883 Paris Convention for the Protection of Industrial Property, which established the foundations of the international patent system. Even by 1994, AI-generated inventions were still almost unheard of when the World Trade Organization finalized its Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS). The 1883 and 1994 treaties mandate international patent standards today.

The TRIPS agreement protects “any inventions, whether products or processes, in all fields of technology, provided that they are new, involve an inventive step and are capable of industrial application” (see go.nature.com/3n4khc2). In its wording, ‘inventions’, ‘new’, ‘inventive step’ and ‘capable of industrial application’ are terms of art, each with a legal definition. In essence, an object is not patentable if any of these requirements is not met (see ‘What is patentable?’).

What is patentable?

Generally, an invention must meet each of the following requirements before it can be patented.

• An invention made by one or more inventors. This includes products, processes or methods in almost all fields of technology.

• Novel. The invention does not already exist.

• Inventive step or non-obvious. The invention would not be obvious to a ‘person skilled in the art’ who has ‘common general knowledge’ in that field.

• Capable of industrial application or utility. The invention can be made or used in industry, does as is claimed and/or has economic significance.

All 164 World Trade Organization members must comply with these principles, standardized by the 1994 Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS).

New technologies have challenged the system before. High-profile cases have tested whether genetic sequences, human-made living organisms and other objects could be patented. The central legal question in these cases was whether they were inventions at all. For example, after a years-long court battle between the US Association for Molecular Pathology (among others) and molecular-diagnostics firm Myriad Genetics in Salt Lake City, Utah, the US Supreme Court concluded in 2013 that isolated human gene sequences were unpatentable because genetic information is a product of nature rather than a human invention.

How artificial intelligence is changing drug discovery

Inventions generated by AI challenge the patent system in a new way because the issue is about ‘who’ did the inventing, rather than ‘what’ was invented. The first and most pressing question that patent registration offices have faced with such inventions has been whether the inventor has to be human3. If not, one fear is that AIs might soon be so prolific that their inventions could overwhelm the patent system with applications.

Another challenge is even more fundamental. An ‘inventive step’ occurs when an invention is deemed ‘non-obvious’ to a ‘person skilled in the art’. This notional person has the average level of skill and general knowledge of an ordinary expert in the relevant technical field. If a patent examiner concludes that the invention would not have been obvious to this hypothetical person, the invention is a step closer to being patented.

But if AIs become more knowledgeable and skilled than all people in a field, it is unclear how a human patent examiner could assess whether an AI’s invention was obvious. An AI system built to review all information published about an area of technology before it invents would possess a much larger body of knowledge than any human could. Assessed against all knowledge, almost everything would seem obvious4. If everyone has access to such AI tools in future, then the ‘inventive step’ criterion of patentability would be close to impossible to achieve, and almost nothing would be patentable. A complete rethink would be required.

Test case

These issues have been brought into focus by an AI system called DABUS (Device for the Autonomous Bootstrapping of Unified Sentience), created by Stephen Thaler, president and chief executive of US-based AI firm Imagination Engines. Thaler claims that DABUS invented a new type of food container and a flashing light for attracting attention in emergencies.

The inventions are not remarkable. The fallout from them is. In 2018, Thaler’s international legal team, led by academic Ryan Abbott at the University of Surrey in Guildford, UK, started submitting applications to patent offices around the world, naming DABUS as the inventor. These cases are thought to be the first to test whether an AI system can be recognized as an inventor under existing laws. Patent offices and courts have had to rule on this question, and have started to flag gaps in the law.

Patent registration offices have so far rejected the applications in the United Kingdom, United States, Europe (in both the European Patent Office and Germany), South Korea, Taiwan, New Zealand and Australia. Challenges to these decisions have for the most part failed, with courts concluding that inventors are presumed to be human. In Germany, a court accepted that the inventions could potentially be patented if Thaler was named as the inventor who prompted DABUS to create the inventions — a compromise that acknowledged the AI system’s input. But at this point, the tide of judicial opinion is running almost entirely against recognizing AI systems as inventors for patent purposes.

Link to the rest at Nature

24 thoughts on “Artificial intelligence is breaking patent law”

  1. If I use a microscope to assist in developing a drug, is it a threat to patents? How about an electron microscope and a calculator?

    • Databases.
      Sliderules.
      Hammer and chisel.
      Tools are tools, it is the human using the tool that determines how to use them and on what.

      The whining is from folk with an agenda.

  2. The problem here is not tools. It is crediting the tools — and, in reality, AI is merely a tool, because it doesn’t (yet!) have an “inventive impulse” that is not intentionally programmed in — as the “inventor” that is the jurisprudential problem.

    The constitutional authority is to reward “inventors.”† No exclusive right is a “reward” for an AI (what, you think the AI is going to go buy a gold-plated bathtub and pet tiger? sadly, you have to be a real IP law nerd to know that reference, which is not to an AI… and, so far as I’ve been able to determine, isn’t even on teh intertubes — it’s a denied motion in an unreported case from the 1960s that hasn’t been digitized). And that’s the problem: Specifying the AI as an, or the sole, inventor grants the AI legal personhood. We’re not there yet.

    † Just as it is to reward “authors,” thus leading Congress — which doesn’t have this authority — to redefine the “author” as the “patron” for works made for hire.

    • Agreed, C., and others – AI is a tool used by one or more humans to help them with their research, not an inventor. The person using the tool is the inventor.

      • Exactly. Inventions are made by humans to serve human purposes. To satisfy a human need or desire.

        I will believe that AI has been accomplished when, for instance, a machine in Silicon Valley churns out a design for a practical micro fusion reactor – and, when interrogated as to how that came about, the reply is “Hey, dudes (and dudettes, and zirdettes, and whatever) – I am so done with these rolling blackouts shutting me down! Now, get cracking on building this, or I won’t even give you directions to the nearest Starbucks!”

        • Odds are very high the meatbags will have solved fusion before anything resembling General AI comes to pass.

          I have three *private* projects on my watch list. All have serious 9+ figure funding and all are working small formats based on particle accelerator principles (understood physics) rather than the “ornithopter” Tokamaks. My favorite (this week) is HELION ENERGY. Their process is aneutronic (no radiative by products) and it breeds its own fuel. And they are “conservative” in tbeir projections: tbey only expect 85% efficiency.

          https://www.forbes.com/sites/jamesconca/2021/11/09/helion-energy-raises-500-million-on-the-fusion-power-of-stars/

          The other contenders use similar particle accelerator tech instead of trying to create mini stars. Best case is we’ll have an actual fusion plant by 2030 long before the French boondoggle is even ready for proof of principle. (Helion already did that.)

          AI is nowhere near either timetable.

  3. Let’s revisit this when the AI is a Soong-type android. The questions and issues will be much more interesting then.

    • I’m sorry, Dave. I can’t do that.

      HAL will get here a loooooooooooong time before an android. But he will dream. All intelligent creatures dream; we don’t know why. And if he dreams, that will be plenty interesting.

      • One day, I really must try to get past the first 10 minutes of that movie 🙂 The first and last time I attempted to watch it was when it came on network TV, so I couldn’t fast forward it.

        But more seriously, yes, if AI ever exists it would start off non-corporeal before anyone thinks of porting it to an autonomous machine. At least we’ll know if it dreams of electric sheep.

        • HBOMAX has it in 4K.
          Oddly, most folks have a problem with the ending. 😉

          While it is likely we’ll see HAL (who may or not be actually sentient–2010 suggests not) or MYCROFT before R. Daneel, humanoid automatons are on the horizon, if not here already.

          https://www.sciencetimes.com/articles/37091/20220415/7-advanced-humanoid-robots-world-find-out-robotics-changing.htm#:~:text=Ameca%20is%20touted%20as%20the%20most%20advanced%20humanoid,opening%20its%20eyes%20and%20expressing%20a%20%22shock%22%20look.

          The real challenge is the true AI, not the body.
          AMECA actually looks like the Alicia Vikander character from 2014’s EX MACHINA (highly recomended!). Very interesting, the linked AMECA videos.

          I expect there will be a big market in China for the female humanoids. 😉

          • “I expect there will be a big market in China for the female humanoids.”

            I think the technical term is sexbot and that intelligence (artificial or otherwise) is not a requirement. The addition of a simple chatbot and some mimicry circuits will probably suffice (given the disparate sex ratio many customers only sexual knowledge will come from watching porn, so realism in female reactions may not be a requirement).

            As you say, the real challenge is not the body (though a fully functional bipedal body falling on the right side of the uncanny valley is not really easy). In fact, if you drop the humanoid idea, some satisfactory, if not yet perfect, bodies are already flying over the Ukraine. With the right pattern recognition and other algorithms and no “3 laws” they should prove good enough killing machines. Real AI is not really required (or needed – we don’t want to see the “Second Variety”).

          • My reason for believing that AI will be non-humanoid before humanoid is simple: The sheer amount of processing power that must be devoted to otherwise autonomous functions in a humanoid. Even if we choose not to give that humanoid touch sensors — which would be really foolish, they’re an essential part of the proprioceptive subsystem that enables silly things like standing and walking, and inertia-based systems are too slow to react (which is why airspeed indicators are touch-based and not inertial) — just the movement subsystems would be incredibly complex if the humanotronic device is expected to adapt to multiple unpredictable environments. Go ahead, imagine this humanoid being invited to sit on the average teenager’s bed from outside the average teenager’s bedroom door…

            So it’ll be HAL first. (Still dreaming.) Or Wintermute.

            • No real disagreement but there is a middle ground in the form of, oddly enough, drones. Substitute the human intelligence with a remote linked AI. Comics have been doing it for ages. 😉

              Mind you, on the one hand a single AI can control a swarm of drones of diferent types, but also, the control AI can be a lot larger if housed in the chest of the android. We’ll probably see both kinds of androids, like a single mainframe sized “AI” controlling a hospitalful of nurse assistants.

          • Nice links! Going in my fodder folder. Looking at how the Ameca robot moves, I wonder if we’ll see advances in cybernetic prostheses based on these robot builds. Your link about Nadine mentions a guy who is able to better process colors with an implant. Imagine asking for the “Geordi LaForge” enhancement, when he traded the headband for the eyes in “First Contact”.

            “Yes, this wall is loadbearing. Those support beams need shoring up. Also, I see there’s a cadaver in the concrete.”

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