Three patent offices face questions stemming from the growing implications of artificial intelligence (AI) disrupting the intellectual property legal framework. The United States Patent Office (USPTO), European Patent Office (EPO), and United Kingdom Intellectual Property Office (UKIPO) recently received two patent application filings directed to a beverage container and a flashing device used for attracting enhanced attention. While these patent applications may have initially gone unnoticed, the applications have attracted vast attention for primarily one reason—they name DABUS, an AI machine, as an inventor.
DABUS is a type of “Creativity Machine” which can generate ideas without human intervention and was developed by Stephen Thaler. While DABUS may have been “trained” to develop new ideas by a human, the two pending patent inventions were created autonomously by DABUS, resulting in DABUS named as an inventor.
However, 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” (emphasis added). 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. However, not only would inventorship be an issue, but inventions conceived by AI raise additional questions surrounding what “rights,” if any, AI has in developing a novel idea, and whether the statutes allow for non-human inventors to hold patents. Further, questions remain over how the standards of obviousness should be applied to inventions not created by a human person. See also previous blog posts written by MVS Intellectual Property Attorney, Kirk M. Hartung, regarding issues surrounding protecting creativity of AI (Part 1, Part 2, Part 3).
While thousands of patent applications directed to AI are being filed at the USPTO, the DABUS patents are the first to name AI as an inventor. Therefore, filing these patents pressure the patent offices and courts to address these unresolved issues, perhaps sooner than they had anticipated.
The patent applications are pending and have not published.