Kelly Brandenburg, MJLST Staffer
Ever since the introduction of electronic computers, innovators across the world have focused on the development of artificial intelligence (“AI”), the goal being to enable machines to act like humans by making decisions and responding to situations. Generally considered to be the first artificial intelligence program, the Logic Theorist was designed in 1955 and enabled a machine to prove mathematical theorems. Since then, people have developed machines that have beat humans in some of the most strategic and intuitive games, such as Chess, Scrabble, Othello, Jeopardy, and Go.
As new innovations are developed, whether in AI or other areas of technology, patents are a common means for the inventors to protect their ideas. However, what happens when the AI technology advances to the point where the machines are making the innovations? Does the protection afforded to human inventions by Article I, Section 8 of the Constitution apply to new AI inventions? While this capability is still to be developed, the questions of patentability and patent ownership have been brought up previously, and will potentially need to be addressed by the United States Patent and Trademark Office (“USPTO”) in the future.
An initial question is whether the invention can even be patented. There are a variety of terms in patent statutes that indicate that the inventor has to be a human in order to get a patent, including “whoever,” “person,” and “inventor.” Therefore, if the invention is developed by a non-human entity, the same patent protection may not be applicable. However, assuming the inventions are patentable, then the next question is who should have the ownership rights to the patent. Should the AI itself get the patent, or should it instead go to the owner of the machine, or maybe to the inventor/programmer of the AI program?
The main purpose of providing patents to inventors is to “promote the progress of science and useful arts” by allowing the inventors to exclusively benefit from their efforts; it is an incentive-based program. From the AI perspective, there would not be much benefit in providing the AI with the exclusive rights of a patent, assuming the AI does not desire the money, recognition, or any other benefit that might come with it. Its innovation is more likely to be due to the natural development of its programming over time, rather than the incentivization of any reward it might get. However, since this technology is still being developed, maybe AI will learn to act similar to humans when it comes to incentives, which would then mean that giving it a patent could induce more innovative efforts.
For owners, depending on how the owner uses and interacts with the AI, the ownership rights of a patent may or may not have its desired effect. If the owner has the desire to use the AI to potentially invent something and exposes it to unique environments or equipment, then perhaps they deserve the exclusive rights to the AI’s patent. However, if the AI just happens to invent something with no direction or intent of the owner, it would not make much sense to reward the owner for exerting no effort.
Lastly, the patent could also go to the initial programmers of the AI. This would also likely depend on whether or not enough effort was put into the development of the AI after its initial programming. When the owner puts in the effort, then the owner might get the patent over the programmer, but if the AI just happens to invent something regardless of what the owner does, then the programmer could have rights to the patent. Again, if programmers would benefit from the AI’s invention, that would incentivize the programmers to further enhance their programs.
Since these specific capabilities are mostly hypothetical at this point, it is impossible to predict exactly how the AI technology is going to advance, and actually work, in the future. However, the technology is definitely changing and getting closer to making AI innovation a reality, and patent law will have to adapt to however it unfolds.