If AI invents something, who gets the patent?

Researchers from UNSW Sydney have published a new research paper exploring the question of who — or what — should be awarded the patent when artificial intelligence invents something that humans could not.

In the paper, published in the journal Nature, IP law specialist Associate Professor Alexandra George and AI expert Laureate Fellow and Scientia Professor Toby Walsh argue that current patent law is inadequate for such a scenario.

The authors urge legislators to amend laws around IP and patents to address what could become a pressing issue, with the first such case already having arisen in Australia.

In the case in question, a machine called the Device for the Autonomous Bootstrapping of Unified Sentience (DABUS) has been named by its creator — Dr Stephen Thaler, CEO of US-based AI firm Imagination Engines — as the inventor of two products.

One is a food container with a fractal surface that helps with insulation and stacking, and the second is a flashing light for attracting attention in emergencies.

For a short time in Australia it appeared that DABUS would be recognised as the inventor because a trial judge accepted Thaler’s appeal against IP Australia’s rejection of the patent application he had filed on the machine’s behalf.

But after the Commissioner of Patents appealed the decision to the Full Court of the Federal Court of Australia, the five-judge panel agreed that an AI system couldn’t be named the inventor.

Just the attempt to have DABUS awarded a patent for the two inventions instantly creates challenges for existing laws, according to George.

“Even if we do accept that an AI system is the true inventor, the first big problem is ownership. How do you work out who the owner is? An owner needs to be a legal person, and an AI is not recognised as a legal person,” she said.

“Another problem with ownership when it comes to AI-conceived inventions, is even if you could transfer ownership from the AI inventor to a person: is it the original software writer of the AI? Is it a person who has bought the AI and trained it for their own purposes? Or is it the people whose copyrighted material has been fed into the AI to give it all that information?”

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