Increasingly, companies are using artificial intelligence to invent new methods and products. But can a named inventor be a non-human machine under the law? That depends on which country's laws are being applied. The question of whether a country's Patent Act requires an "inventor" to be a human being is a question of statutory construction. For example, in the U.S. the statute requires an application for patent be made "by the inventor…in writing to the Director."1
The question whether an artificial intelligence ("AI") system can be named as an inventor in a patent application has obvious implications for the life science community, where AI's presence is now well established and growing. For example, AI is currently used to predict biological targets of prospective drug molecules, identify candidates for drug design, decode genetic material of viruses in the context of vaccine development, determine three-dimensional structures of proteins, including their folding form, and many more potential therapeutic applications. In a landmark decision issued on July 30, 2021, an Australian court declared that an AI system called DABUS can be legally recognized as an inventor on a patent application. It came just days after the Intellectual Property Commission of South Africa granted a patent recognizing DABUS as an inventor. These decisions, as well as at least one other pending case in the U.S. concerning similar issues, have generated excitement and debate in the life sciences community about AI-conceived inventions.
The US District Court for the Eastern District of Virginia on Wednesday ruled that an artificial intelligence (AI) machine cannot be an inventor under the Patent Act. The action was a motion for summary judgement concerning two patent applications filed by Stephen Thaler for an AI machine called DABUS. DABUS was listed as the inventor for Neural Flame--a light beacon that flashes in a new and inventive manner to attract attention--and Fractal Container--a beverage container based on fractal geometry. Thaler's patent applications were rejected by the US Patent and Trademarks Office (USPTO) and he challenged this refusal as "arbitrary, capricious, an abuse of direction and not in accordance with the law". He filed this action seeking a declaration that a patent application should not be rejected only on grounds that there is no natural person identified as the inventor and that a patent application for an invention by AI should list the AI as the inventor when the criteria for inventorship has been fulfilled by the AI. The court rejected Thaler's contentions, holding that the definitions provided by Congress for "inventor" within the Patent Act reference an "individual" whose ordinary dictionary and statutory meaning is a natural person or a human being.
Patent offices and courts around the world are being asked to tackle a similar question: can an artificial intelligence system qualify as an inventor for a patent? A test case making its way through several countries--from Saudi Arabia to Australia to Brazil--has spurred debate about advancements in artificial intelligence technology and questions about whether patent laws need to be revised to recognize machines as inventors. A judge in the U.S. District Court for the Eastern District of Virginia recently ruled that, under current U.S. law, AI can't be listed as an inventor on a patent. The ruling was in line with what U.S., British, and EU patent officials have concluded. The push to recognize AI as an inventor comes from Ryan Abbott, a University of Surrey law professor, and Stephen Thaler, a computer scientist from Missouri.
Section 101 states "[w]hoever invents or discovers…may obtain a patent therefore…" According to 35 U.S.C. § 100, an inventor is defined as an individual or individuals. As technology has advanced and the possibility that AI would invent something became a probability, the question has arisen whether AI can be an inventor under United States law.