Patent Pending: The Rise of the AI Inventor - Fordham Intellectual Property, Media & Entertainment Law Journal
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Patent Pending: The Rise of the AI Inventor

Patent Pending: The Rise of the AI Inventor

Should AI be recognized as an inventor under patent law? This question has made its way through patent offices in the United States, Europe, and the Middle East after several experts from the Artificial Inventor Project (“AIP”) filed two patents and listed Dabus AI, instead of a human, as the inventor on the applications.1 The inventions included a warning light and a food container and were filed on behalf of Stephen Thaler, the CEO of Imagination Engines and the creator of Dabus (which is short for “device for the autonomous bootstrapping of unified sentience”).2

According to the AIP group, Dabus should get the credit for the inventions because it came up with them on its own after being provided general data about various subjects.3 Additionally, although Thaler created Dabus over the course of a decade, he personally did not have any expertise in the fields pertaining to the inventions and would not have been able to invent them otherwise.4 This point, according to the AIP team, is what makes Dabus the rightful inventor.5

The designation of Dabus as the inventor on the applications presents an issue mainly because many jurisdictions only recognize “natural persons” or “individuals” as inventors.6 For this reason, the applications were rejected in the UK and European offices, even though those offices considered the inventions themselves worthy of patents.7 The designation also presents an ownership issue, as patent law has a specific way of assigning ownership.8 According to the AIP group, Dabus is the inventor while Thaler is the owner.9 According to patent law requirements, however, an “inventor must be either the employee or the contractor of the parent company” and the fact that Dabus is legally neither (because it cannot, in the traditional sense, enter into contracts or authorize licenses) is alone sufficient to constitute rejection of the applications.10

Unlike some of the patent offices around the world, the AI inventorship question is still an open issue for the U.S. Patent Office.11 After receiving the Dabus applications, the USPTO requested public comment on AI, which included questions related to the elements of an AI invention and considerations around what new intellectual-property protections might be necessary.12 Based on the initial consensus, it seems that AI cannot be an inventor under current U.S. law, but the debate continues.13 Although it is not yet evident what will come of the AI inventorship puzzle, clarity is certainly going to be important for inventors, owners, and investors and for the continuing innovation and investment in emerging technologies.14

  1. See Angela Chen, Can an AI be an inventor? Not yet., MIT Tech. Rev. (Jan. 8, 2020), []; Jared Council, Can an AI System Be Given a Patent?, Wall St. J. (Oct. 11, 2019), [].

  2. See id.

  3. See Chen, supra footnote 1.

  4. See id.

  5. See id.

  6. See Council, supra footnote 1.

  7. See Chen, supra footnote 1.

  8. See id.

  9. See id.

  10. See id.

  11. Council, supra footnote 1.

  12. See id.

  13. See Michael Renaud, Update on Federal Register Notice on Artificial Intelligence (AI) Patent Issues, Nat’l L. Rev. (Jan. 21, 2020), [].

  14. See Council, supra footnote 1.

Sofiya Bavlovych

Sofiya Bavlovych is a second-year evening J.D. candidate at Fordham University School of Law and a staff member of the Intellectual Property, Media & Entertainment Law Journal. During the day, she works full-time as a Contracts Specialist in the Corporate Legal Affairs group of NBCUniversal. She holds a B.A. in Political Science from New York University.