An Invented Inventor

The legal systems worldwide are at crossroads to review its legislation and further augment it by adding laws that deal with inventions made by Artificial Intelligence. It was 1956 when the term AI was heard[1] and 1988 when the United Kingdom became the first country, to explicitly provide Copyright for an AI work.[2] With the advancement in technologies and AI, we have seen various changes in the realm of Intellectual Property Rights. Now, we are watching an intricated situation where AI is inventing things and the respective owners are filing applications to get the invention patented. AI has shown its capabilities and it will further be more advanced in future.

In an ideal paradigm, we should have proper laws about inventions, when not made by humans or any creative work, when not by humans. Awarding patent rights for the invention is protecting the moral rights and the legal rights of the inventor. Though we may scrutinise today to see that most of the patent holders are businesses and not the bonafide inventor. Companies and businesses nowadays develop Contractual assignments under which though the inventor remains, the bona fide inventor, patent rights are rendered to the company. This, we see in most general case worldwide.

It is axiomatic in the absence of patents situations of scepticism will develop with people doubting the legality and source of the invention. Artificial Intelligence making new inventions and owners proposing that the AI remains the inventor, while the patent rights reside with the owner of the AI. According to Rachel Herder, assistant professor of law at Penn State Law, what’s at stake is how the world wants to reward innovations.[3]

For non-humans like AI, it is about the rewarding investment in innovations. In a scenario, where no patent rights are granted for the inventions by AI, industries may try to keep it a secret and use it themselves to gain an advantage over the contemporaries. Though in industries like a pharmaceutical company, it may not be possible to keep those inventions a secret. The main purpose of the invention will be anyway saved. If owners start getting patent rights for discoveries in which they did not contribute, it will not concern the AI which itself has no moral rights but will defeat the idea behind human inventorship. If an AI has been specially designed to solve a particular problem or certain types of problem, the owner of AI must get patents. Allowing patent otherwise would defeat the purpose of human inventorship.

There are two sides of a coin, on one side, where not giving the patent rights may provide justice to human inventorship, the other side sees, permitting patent rights will bring about the motivation for AI as well as the owners. ‘The more you know, the more you grow’, says Rachel Herder.[4] Current policies require an inventor to be a human being.[5] Even when the patent is not owned by the inventor which has been proposed, the inventor must be a human.[6] Recently we saw a very interesting case,[7] in which a crested macaque in Indonesia, photographed herself with David Slater’s camera. The British photographer claimed the copyright when Wikipedia uploaded the picture in the public domain. People for Ethical Treatment of Animals (PETA) sued David Slater, over copyright infringement as claimed by PETA, the copyright remains with Naruto, the macaque.

The California court dismissed the petition based on animals not having stand over Copyright infringement. This showed the current legislations encumber to a limited number of situations and there may be a need to augment the current laws of Property and human authorship as well as inventorship policy. Like the “creative spark” required of authors in copyright law, patent law requires “non-obvious” discoveries or “inventive concepts” by its inventors. To survive a challenge against obviousness, courts consider four “factual issues: (1) the scope and content of any prior art, (2) the differences between the prior art and the claims of the invention, (3) the level of ordinary skill of practitioners in the art, and (4) the relevant secondary considerations such as commercial success, surprise by other experts, etc.[8]

 Usually, in cases of Contractual Assignment, there is a contract between employers and employees, the employees invent something, the employee who invented gets the inventor rights, patent rights reside with the company. Unlike the copyright law, the patent law does not recognize entities as inventors for which they employ people and the employment contract in those situations usually let the inventor rights with the employee and patent rights transferred to the entity.

If this case is possible with humans, why can’t it be with non-humans? If a person after inventing can get inventor rights, transferring the patent rights to the employer, AI should be allowed to keep the inventor rights, patent rights being given to the owner of AI. This was just looming on the horizon for the concerned authorities, so this argument could not get patent and copyright rights for non-humans. In the year 1956, Martin Klein and Douglas Bolitho created a piece of music using a computer,[9] which they tried to get registered but it was not accepted being said, it did not involve human creativity. Through phases, we evolved and consolidated our legislations through various changes.

There were two cases filed before the European Patent Office and United Kingdom Intellectual Property Office in November 2019, numbered  EP 18 275 163 and EP 18 275 174,[10] which the European patent office refused, as the machine named DABUS was designated as an inventor, which is described as a type of connectionist artificial intelligence. The AI designed an interlocking food container for robot use, with a warning light which flashes in an unignorable rhythm.[11] It was adjudged that they do not meet the legal requirements of the European Patent Convention that the inventor has to be a human being, which in this case was DABUS, an AI.[12] The courts ruled that the designation of an inventor is mandatory as it bears a series of legal consequences, notably to ensure that the designed inventor is a legitimate one and that he/she can benefit from the rights linked to it to this the inventor must have a legal personality that AI systems or machines do not enjoy.[13]

This case has also been filed under the Patent Cooperation Treaty to which there are 36 signatories, being ratified in 8 countries. At another instance, John R. Koza of Stanford University invented the inventing machine.[14] As of now, the machine named Genetic Programming (GP) has created 15 machines which are similar to a 20th-century invention and twice invented a new thing.[15] These brighten the future of AI. Of course, we are entering a new era of AI and we are standing at the crossroads, where we should have proper laws governing the system of AI. New laws as for AI will also motivate people involved in the concerned field and a new pace will be set for the world watching new inventions and various creative works by an Artificial Intelligence. Data privacy will be a catch-22 as it has always been a controversial matter.

AI may collect the data but proper disposal by the concerned authority needs to be transparent, which will be looked upon by a statutory body so that the punishment for breach of data trust can be imposed. Conclusively, the use of AI is continuously expanding with unabated widespread worldwide. Laws definitely should come up for the regulation of works of AI be it invention or authorship thinks the author. Policymakers will need to review the advancements and how the technology was being used, the hazards distracting driving created and only then were they able to come up with meaningful laws to regulate the use of the technology. Permissive and prohibitive laws of data privacy and its breach should be framed is firmly believed by the author.


[1] The Story of AI in patents, World Intellectual property Organization, https://www.wipo.int/tech_trends/en/artificial_intelligence/story.html

[2] Ryan Abbott, The Artificial Inventor Project, World Intellectual Property Magazine, Dec 2019, https://www.wipo.int/wipo_magazine/en/2019/06/article_0002.html

[3] Rachel Herder Can AI be an Inventor, 26 Aug 2019,  https://sciencenode.org/feature/Can%20AI%20be%20an%20inventor.php

[4] Ibid, 3

[5] 17 U.S.C.S. § 112(a)(A)(2018), (describing required actions by a legal organization for protecting copyrighted material)

[6] https://www.law.berkeley.edu/wp-content/uploads/2019/12/Panel-8-Chris-Mammen.pdf

[7] Christopher Albiz, Kendra Albert, Can non-humans hold copyrights, Jan 30, 2018, 1200 hrs,   https://cyber.harvard.edu/events/2018/luncheon/01/monkeyselfie

[8] Princeton Biochemicals, Inc. v. Beckman Coulter, Inc., 411 F.3d 1332, 1336 (Fed Cir. 2005)

[9] https://ocw.mit.edu/courses/music-and-theater-arts/21m-380-music-and-technology-algorithmic-and-generative-music-spring-2010/lecture-notes/MIT21M_380S10_lec09.pdf

[10] European Patent Office, 20 Dec 2019, https://www.epo.org/news-issues/news/2019/20191220.html

[11] Mark White, AI should be recognized as the inventor of new container product, Top business tech, 19 August 2019, https://tbtech.co/ai-recognised-inventor-new-container-product-academics/

[12] European Patent Office, 28 Jan 2020, https://www.epo.org/news-issues/news/2020/20200128.html

[13] Ibid, 12

[14] John R Koza, Computer Systems Laboratory Colloquium, Stanford University, 4:15 PM, Wednesday, November 24, 2004, https://web.stanford.edu/class/ee380/Abstracts/041124.html

[15] Ibid, 14

Aryan Anand from Chanakya National Law University, Patna

Aryan is sports enthusiast who dreams to serve the Indian Air Force.

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