A.I. Computers Should Be Named as Inventors on Patents

A lawyer proposes that creative computers be elevated from the role of sophisticated tools to that of inventors.

In 1994, the same year Apple launched the Power Macintosh and Amazon registered its domain name, physicist Stephen Thaler invented the Creativity Machine, a computer that used artificial neural networks to generate novel ideas. Some of the results of its inventive "thinking" included 11,000 original songs written over a single weekend and the stiffly named Neural-Network-Based Prototyping System and Method. A patent was granted for the prototyping system in 1998, and although Thaler listed himself as the inventor, he told colleagues, including General Dynamics contractor Rusty Miller, that the Creativity Machine came up with the idea. A machine had invented.

Thaler didn't disclose the Creativity Machine's contribution on the patent application, and why should he? The Patent Act has never had a policy about giving credit to computers as inventors. And who would have thought back then that a machine was capable of such a thing? Certainly not the U.S. Patent Office, which unwittingly granted a patent for an invention created by a nonhuman entity.

Today of course, with software that mimics the workings of the human mind, the notion that artificially intelligent systems can create new ideas autonomously is a no-brainer. Therefore, the rules should change, says Ryan Abbott, professor of law and health sciences at the University of Surrey in the U.K. Artificial intelligence at the core of systems like Google's DeepMind and IBM's Watson should be elevated from the role of sophisticated tool and listed as an inventor alongside its human owners, he argues in his paper published this week in Boston College Law Review.

Doing so would encourage researchers to develop more A.I., while at the same time prevent company outsiders from claiming a creative computer's ideas as their own - a feasibility under current law.

"Automation of invention is going to be a major driver of economic growth pretty soon, and so it begs a couple of interesting questions, which are very important to businesses like Google and IBM and Apple that are investing in artificial intelligence," Abbott told Seeker. "Namely, if a computer invents something, is it patentable and if so, who owns it?"

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One doesn't have to throw a thumb drive far to hit a computer dreaming up new inventions. IBM's supercomputer Watson is nearly a household name. After winning $1 million on Jeopardy!, it went on to create new food recipes, new treatment plans for cancer patients, assist in financial planning and help set up clinical trials by matching the genetic profiles of patients with potential drugs. Google's DeepMind has written songs, generated artwork and created a voice synthesizer that sounds more human than ever.

But the patents to the different technologies that make up those A.I. systems are distinct from the products they create. Who owns those creations is up to legal interpretation.

"On the patent end, this issue has not been seriously debated," said Abbott. "There's no case on it; there's no law on it; there's no Patent Office policy."

If a case did come up, the US Patent Office could follow the policy of the Copyright Office, which states that only a human author can create copyrightable material. Whatever a supercomputer created would then belong in the public domain, alongside creations by other nonhumans, such as art drawn by elephants and selfies accidentally taken by monkeys.

"(It's) more sensible to say programmers are agents that set inventive process in motion," wrote Pamela Samuelson in an email to Seeker. Samuelson is a professor of law and information at the University of California, Berkeley and the co-director of Berkeley Center for Law and Technology.

But that could leave open a backdoor.

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Under current law, a person doesn't need to invent something to patent it. They need only to recognize that a creation - for example, one created by an A.I. - is new or innovative to apply for a patent, provided someone hasn't beaten them to the Patent Office first.

Right now, IBM's Chef Watson is available on the internet to generate original, innovative food recipes. Even though recipes can be patented, Vegetarian Leek Hummus will likely never be the subject of litigation. But let's say IBM makes Watson available for some other venture, something that generates creative outputs that are a little more advanced? A little more valuable? A little more patentable? The company might not want to share Watson at all.

"I think the way it should work, the way it could work, is that we list Watson as the inventor and whoever owns Watson, which is IBM, as the patent owner," said Abbott.

It's the fairest solution, he said, because it doesn't put a creative computer's invention into the public domain, and it's the least problematic because it prevents an outsider from discovering the invention. If an A.I. is listed as an inventor, no matter what happens, the value of its creations flows to the owner, who isn't at risk for sharing.

And that, says Abbott, results in more innovation and incentivizes researchers to invent more creative computers.

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Brett Frischmann is skeptical. In an email, Frischmann, the Microsoft visiting professor of information and technology policy at Princeton University and a professor at Benjamin N. Cardozo School of Law, told Seeker he wasn't convinced that granting A.I. systems patents would optimize innovation and have a positive economic impact.

"It is impossible to say without a much more comprehensive and comparative analysis of how granting such patents (in comparison with alternatives) would impact a host of different activities, including different types of R&D investments, licensing, etc.," he wrote. "Despite my skepticism on these points, it is important to also recognize that Ryan is exploring a new and interesting area in a provocative paper, and I applaud him for that," said Frischmann.

Abbott acknowledges that people will be skeptical. Even without a change to the patent law, companies like IBM and Google may be plenty motivated to continue building creative A.I. systems. Certainly computers don't need encouragement to invent, which is one of the main reasons patents are issued in the first place. What's more, patents can restrict competition and drive up cost.

Whether the Patent Act changes or not, invention will move into the future. Many scientists predict that in a couple of decades, machines will reach the singularity, the time when their artificial intelligence with match and quickly surpass our own. "It is not especially improbable to imagine that computers could eventually preempt much or all human invention," said Abbott. If that happens, patents may become a thing of the past.