A Critical Analysis on the Denial of Inventorship Rights to AI and Creative Computers Sergios Papastergiou FirstName Surname FirstName Surname† LegalTech LLM Department Name Department Name Swansea University Institution/University Name Institution/University Name Wales City State Country City State Country serg.papastergiou@gmail.com email@email.com email@email.com ABSTRACT In light of these developments, this paper will discuss the subject of AI generated innovations and the assignment of inventors in As the title suggests, in this paper the author examines, through such cases. In the first section the paper will address the meaning the analysis of the DABUS applications, the possibility, legality of AI and their inventive qualities. Following that, in the next and usefulness of identifying creative computers as inventors for patentable innovations imagined and developed by these systems section, the current patent legislation will be discussed and will be with insignificant or no human intervention. The author stands applied in the situation in hand. To better comprehend the patent by the view that identifying humans as inventors in cases where system and successfully tackle the issue of computer innovations, they had little or no contribution, distorts the current patent the third section will explore the philosophical justifications for system by rating protection to non-inventors. On the other hand, patent law. After gathering all this information, we are ready to grating inventorship to non-human actors serves no visible apply our conclusions to the issue before us. The last two sections purpose. Maybe, the current patent system is in need of reshaping, of the paper provide the writer's point of view over the as to make room and regulations to protect such inventions, patentability of computer inventions and the possibility of naming which, day by day, are becoming more and more popular. AI as inventors as well as the allocation of ownership rights in the case of an affirmative answer to the challenge of inventorship. CCS CONCEPTS • Applied computing ~Law, social and behavioral sciences 2. The creativity of Artificial Intelligence ~Law There have been many attempts to define Artificial Intelligence as KEYWORDS well as many types of AI systems with various functionalities and AI, Patent, Inventorship, creative computers, DABUS capabilities8. In the most widely accepted definition, AI can be understood as the technology that performs such a task, which if done by a human, would require intelligence 9. However, not all Artificial Intelligence systems are the same. A core distinction in 1. Introduction Artificial Intelligence systems is that of weak and strong AI. The former one is designed to perform a specific, narrow ask and Artificial Intelligence is making an increasing appearance in cannot deviate from that goal to be used in a wider field 10. An businesses and industries and it is becoming a powerful tool of example of weak AI is IBM's Deep Blue that won versus Gary innovation1. Inventing computers are nowadays being used Kasparov in a game of chess in 199711. The latter one, on the other regularly to create new technologies in various fields2, ranging hand, is designed to achieve a result much closer to a human brain from writing articles3 and producing food recipes4 to composing by developing more generalized "mental" capabilities, such as music and inventing new jet engines with enhanced problem solving and reasoning12. An example of this kind of AI performance5. The last few years academics and experts have would be, from IBM again, Watson13, a reasoning machine with started talking about the possibility of a designation of an access to vast amounts of data, which is able to outperform innovative computer as an inventor in patent applications. The humans in a wide variety of fields, from winning in the game World Intellectual Property Organization (WIPO) has called out "Jeopardy!" against former winners14 to practically becoming a to the word for comments6 on the situation and the challenges chef15, generating new recipes, some of which could potentially that arise. On the other hand, the European Patent Office (EPO) be patentable, if they were made by humans. has recently issued a decision upon the DABUS application (2018)7, in which Stephen Thaler, the applicant, was the first one Artificial Intelligence is rapidly evolving and increasingly more to ever appoint a computer, DABUS, as the inventor of the strong AI systems are developed by big private sector firms such patentable material. as Google, Amazon, and IBM, which invest huge amounts of WAIEL2020, September 3, 2020, Athens, Greece Copyright © 2020 for this paper by its authors. Use permitted under Creative Commons License Attribution 4.0 International (CC BY 4.0) money in the creation of AI systems, able to perform AI, but that is not a part that can be considered as independently with innovative and unpredictable outcomes. "conceptualization" in the sense of patent law26. To allow such Certain academics recognize in these systems characteristics like persons to be recognized as inventors for the AI-generated creativity, autonomy, "free choice" (although goal oriented) as inventions, will not constitute unfair treatment to the AI, since it well as others, which prove that the AI is indeed does not have any interest in being listed as an inventor, nor it intelligent16.These machines are not programmed to follow will be further incentivized to continue inventing, but rather, it specific, rigid rules, but rather operate in the more loose rule of will be unfair to the rest of human inventors that work really hard goal-achievement. Some of them use neural networks, a technique and devote themselves and countless hours of their lives in the that mimics the function of the human brain to create synapses attempt to discover patentable inventions27. In light of these, there between various neurons when learning new information. The is an ongoing discussion about the challenges that AI inventors harder you train, the stronger and more accurate your synapses pose to the patent regime and whether AI should or should not be will be. Much like that, the computer is trained with large amounts considered as an inventor. Furthermore, if concluded that AI can of data, ever optimizing its "understanding" of the data17. Another be named inventor in a patent, who should be the owner of the very popular technology is that of genetic programming. Genetic invention? Currently AIs are not considered legal persons in any algorithms mimic natural selection by breeding a certain jurisdiction and thus, cannot hold property of any kind, nor have "population" of random value chromosomes and the ones that any rights or obligations. perform closer to the initially defined goal get to reproduce. Moreover, a function is embedded in the process that randomly produces new untested chromosomes to secure the largest 3. Current Patent System amount of variety possible in the research. In the end, the population that is better suited to fulfill the initial requirements A patent is the exclusive right over a process or product that becomes dominant and is the only one to reproduce. 18 provides a new way to perform a specific action to the user, or a novel solution to a problem of technical nature, or in other words These machines are already producing patentable inventions for an "invention"28. By holding such a right, one may exclude all decades now, but the AI's participation in the inventive process is others from selling, making, and using the particular invention for not being disclosed in the U.S. Patent Office due to law a period of twenty years creating an absolute monopoly over the uncertainties concerning AI inventions. Examples of such patented invention29. This right is primarily the belonging of the inventions are the 1994 "Creativity Machine", developed by inventor himself, as well as the right to be mentioned as an Stephen Thaler, which was using a neural network to generate inventor and many others30. For something to be considered a novel ideas19. After being exposed to some music, the program patentable invention, certain requirements have to be met, for in was able to produce more than 11.000 new pieces in one most jurisdictions there is no specific definition of an invention. weekend20. Dr Thaler succeeded in getting a patent for the The reason for the absence of a clear definition lies in the attempt "Creativity Machine", but not only that, he got yet another patent of the regulator to encompass as wide a spectrum for patentable on December 2221, “Neural Network Based Prototyping System inventions as possible31. The requirements for an invention to be and Method", which was quote "...invented by Patent Number granted a patent are novelty, originality and industrial use 32. An One"22. invention is novel in patent law, if it does not belong to the "State of the art"33, meaning that it should not have been used or A second example of a unknowingly grated patent for an disclosed, or known by any other means anywhere before. invention artificially created is the "Invention machine" from John Originality refers to the non-obviousness of the invention, or else Koza. The machine was able to generate new and innovative "inventive step". A test has been placed in order to examine that content without the need of human intervention. A patent was parameter, that of the "person skilled in the art", which considers granted for an "Apparatus for that an expert in the field (assuming that he indeed knows the Improved General - Purpose PID and non-PID Controllers” on entirety of the state of the art) reviews the invention and decides January 25, 200523. The significance of this case lies in the fact that whether the solution provided is obvious or not. Last but not least, John Koza did not have any expert knowledge about existing the quality of industrial utility refers to the potential marketability controllers or a database of such24, proving that he could have of the solution34. never invented such a thing on his own. However, he was advised not to disclose the machines involvement in the patent All these provisions, in addition to the normative reasoning application25. behind the adoption of patent law that we are going to discuss later (the utilitarian theory of Intellectual property rights) The common factor in both examples and the many more that we showcase the orientation of patent law towards the invention and did not mention but are making their appearance in the innovative the general benefit of society, rather than the inventors industries, is that the AI is able to function and produce innovative themselves. There does not exist an expressed statute requirement content without human intervention in the creative process. for the inventor to be a natural person35. However, presently most Indeed, programmers and developers engineer the software and jurisdictions only permit natural persons to be identified as trainers spend enormous amounts of time to feed the data to the inventors36. That is to say that if someone stumbles upon anything that could The U.S. constitution does not specifically defines what an be considered an invention, they have a claim of inventorship that "inventor" is37. Nevertheless, there is a requirement for the is weaker only to the person that actually invented the solution 47. inventor to be an "individual". Thus, corporations and legal This provision provides the supporters of human inventorship of persons are excluded from being identified as such. An inventor AI generated inventions in that they are able to overcome the is the individual who "invented or discovered the subject matter issue of conception by default rather than dealing with the essence of the invention"38. Conception is the key idea in identifying the of the problem, which is the rightfulness of identifying as an inventor. Conception can be construed as "the formation in the inventor a person with minimal participation in the inventive mind of the inventor of a definite and permanent idea of the process. Moreover, a solution like this will result in the complete and operative invention as it is thereafter to be applied inventorship being granted to the person least involved in the in practice.”39. Considering these requirement and the way that inventive process; the person who owns he machine and uses it as they are construed, it seems very unlikely that a person providing an end-product (since they will be the ones able to recognize first goals and tasks that a computer then has to solve on its own and the patentability of the AI generated content)48. produce possibly patentable results, should qualify as an inventor. In his paper40, Ryan Abbott, describes the following analogy to depict the actual involvement of the human "inventor" in the case 4. DABUS Applications of independent artificially generated inventions; “Imagine Friend A tells Friend B, who is an engineer, that A would like B to develop On the 17th of October 2018 two applications was filed to both the an iPhone battery with twice the standard battery life and A gives Intellectual Property Office of the United Kingdom and the B some publicly available battery schematics. If B then succeeds European Patent Office for the grant of a patent concerning a food in developing such a battery, A would not qualify as an inventor container49 and "devices and methods for attracting enhanced of the battery by virtue of having instructed B to create a result.”. attention"50 without an indication of the inventor. After request, the applicant identified as the inventor an artificial intelligence Although the U.S. patent Act does not specifically require a machine called DABUS. The applicant explained that the machine natural person to be identified as the inventor, the regulations are was the one that both came up with the novel idea and identified written in such a way that implicitly presuppose that the inventor its significance. Moreover, he stated that identifying anyone else will be human. Examples can be seen in the famous quote as the inventor would be misleading and against the principle of regarding what is an invention "anything under the sun that is the law. The ownership of the rights he applied for, would be made by man"41 and the phrasing of the mental requirement that conferred to the applicant himself, either as successor of the requires that the idea has already been conceived "in the mind" of inventor in title or by the exception of employment law; an the inventor42. However, it is only natural that when these exception that allows the employer to be the default owner of the provisions where made machines that could operate inventions created by their employees. autonomously and systems like neural networks and genetic algorithms where far beyond science-fiction. Hence, the phrasing After considering the applications, the EPO came to the decision of the regulations does not indicate a decision of the legislator to to reject51 the identification of DABUS as the inventor and exclude non-humans, but rather the simple fact that only humans consequently to reject the patent as well. The decision was based could then be imagined of being capable to invent and act on the fact that Artificial Intelligence systems do not have any sort autonomously. On the other hand, regulations and precedents, of legal personality and the EPO provides only for persons. Since even from that time, actively make efforts to deny people that did they are not persons, they cannot hold the rights provided by the not have a significant involvement in a solution to be named EPC and thus it is not possible to be recognized as inventors. It is "inventors"43. The same goes for other jurisdictions as well, such also mentioned in the decision that the boards have not yet as the UK, where under the Patent Act of 1977 an inventor is "the answered in the question of whether entities other than natural actual diviser of the invention"44, presupposing a substantial persons can be inventors. They continue to elaborate that the contribution in the inventive concept. Moreover, in Germany, to employer exception cannot be applied since there is no qualify as an inventor one must both contribute substantially in employment relationship between a machine and a person. The the inventive process and the contribution has to originate from same goes for the succession of title; since AIs do not hold any that person rather than a product of other people directions45. Last rights it follows that it is impossible to transfer rights. The owner but not least, in Switzerland, the invention has to be conceived at of the machine is by default the owner of the content generated such a level that a person skilled in the art could reduce it into by the machine. practice46. In light of these, the question of whether AI should or should not On the other hand, as mentioned before, there is the possibility of be granted inventorship is unfolding to reveal its pertinent the inventor to "discover the subject matter of the invention". This elements. On the one hand, an AI does not have at the moment way, inventorship is also grated to a person that is the first one to any legal personality and thus is absent of any rights and claims acknowledge the importance of an invention that already exists. deriving from the law. Hence, the question of them being granted This provision allows for an invention by accident or pure luck. inventorship stands void. On the other hand, by abiding to the current patent system and allowing the end user to enjoy The utilitarian perspective of Patent Law is really prevalent in the inventorship for the works of the inventive computer, even if they Mazer v. Stein59 case, where the Supreme Court of the U.S. stated, had minimal or no input, we are distorting the integrity of the concerning the rewards for the inventor, ".... is wholly patent system as well as incentivizing a new "minimal effort" secondary....... [t]he sole interest of the United States … [is] the regime for inventions where people spending their lives in search general benefits derived by the public from the labors of authors for an invention would be equated with the people spending their and encouragement of individual effort by personal gain is the money to buy inventive machines. This paper stands by the view best way to advance public welfare . . . .". Furthermore, section 103 that the current patent system will need to adjust to the new of the USPA provides that a patent will not be denied due to the reality of things and evolve to balance once again the conflicting manner in which the invention was achieved. The invention could interests. well be a product of luck or happenstance rather than of effort and research and it will still be patentable. Indeed, section 101 regards discrimination over the circumstances in which the invention in 5. Philosophical Justifications for patent law question was made. The statements showcase the ultimate reasons behind the USPA; social benefit60. The consideration of There have been many theories behind the philosophical whether there should be computer inventors or not should be justifications of Intellectual Property rights. In one of the most approached with these in mind. Questions such as "What would accepted ones, Moore, provides three arguments that justify the be the purpose of naming a computer as inventor?, would need for IP protection rights; the utilitarian justification, the anything be gained?, If so, whose right will be harmed?, Should Lockean and the personality theory52.The utilitarian or otherwise the inventions be patented at all?, are crucial to the conclusion known as incentives-based theory argues that in order to promote which we will reach. creators into producing valuable content, they have to be granted some sort of rights and ownership of their work. Otherwise, they The question of inventorship can be seen as a matching problem might cease to create content and benefit society with their between the "designation of inventor" and one of the four creations and inventions53. This theory explores the "socio- following cases: a) the inventor is a human, b) the inventor is a economic" aspect of IP rights and happens to be the most pertinent computer, c) both a human and a computer are inventors, d) one when discussing patent law54. Benefiting the public domain neither a human nor a computer are inventors61. It has already with new technologies and designs through the disclosure of the been argued that naming a human as inventor in the case that a inventions is the central goal of the patent system55. For this computer produces the invention without significant contribution reason only it is that competition law bends to allow an absolute from any human in the inventive process would be unfair and monopoly over the patented inventions. In the Lockean theory, would transform current inventors into computer investors. Since individual labor is the key value that must be protected. Locke the owner of the machine would be able to extract full value out theorized that when a person labors on an object that is un-owned, of the machine62 (no salary, no special provisions, no possibility then that object is infused with that labor and cannot be separated of the machine working for someone else), the cost of the thereafter56. By that reasoning, after this infusion of personal computer's maintenance would be far less that employing human labor with the object of creation/invention a right of ownership is full time inventors, and the pace of inventive discoveries would formed connecting the laborer with the object of labor. A person skyrocket, the innovation market will drastically transform to has a right of a reward for his work and personal labor, and that adapt to this new cost effective strategy for invention. has to be protected by Intellectual Property laws57. The personality theory is very close to the Lockean one, but rather On the other hand, computers currently do not possess legal than the labor being infused with the item of interest it is the personality and cannot hold rights. Thus, at the moment is seems personality of the subject that lies within one's creation. Their purposeless to designate a computer as inventor 63. Nevertheless, values, beliefs, way of thinking, feelings and experiences are even if AIs are not to be incentivized through patents to work sculpted inside each of their creations, be that tangible or harder and strive, the developers and software engineers, the intangible58. Excluding that last theory, which is most pertinent in trainers and the researchers will64. Morally, though, there should copyright law, the other two theories should play an important be no advantages to be gained from such a designation. Moreover, role in the journey of deciding whether computers should be a 2016 paper on the motivations of software engineers65 grated inventorship or not, for when faced with a unprecedented showcases that the majority are not motivated be reasons relating challenge in law, it is crucial that we look in the justifications of to patents and monopolies, but form other reasons such as the existing provisions to identify the reason behind our next challenges, autonomy of work, potential of recognition and steps. others. Of course, if neither a human nor a computer can be named inventors, it would seem irrational to support the idea of a joint 6. Computer Inventorship inventorship between the two. Hence, the only possibility that is left open is that no patent should be granted at all 66. However, to avoid patents would not be without consequences. If patents are not available for AI generated inventions, then owners of the most values the patent of an AI generated machine is the AI user72. systems will try and protect their inventions as trade secrets and Ryan Abbott73 considers also the case where ownership will lie thus deprive the public from the disclosure of a novel with the owner (user) of the AI as the optimal, in terms of creating technology67. In such a case, the ultimate goal of the patent system easier challenges to deal with. For example, a company designing would completely fail. In light of these, the question, according to inventive computers that still wants to hold the ownership rights the writer, now becomes: Which of the two non-perfect solutions of the patents produced by their AI, could simply license the AI will better balance the conflicting interests and will better serve instead of selling it74. This way, they are still they owner of the AI the ultimate goal of public welfare? or should there be a reshape and, hence, of the patent as well. He then proposes a regime where in patent law or a sui generis system to regulate these the default rule would be to assign ownership rights to the user, circumstances? but leave the final arrangement to contractual freedom, meaning that they will be able to agree differently 75. Another view is that ownership will be assigned to the designer company, since they In order to reach to a conclusion, it is important that we first look provided all the actual work into developing the AI, except if the at the challenges that arise concerning the ownership of such user has bought the computer specifically for the purpose of inventions. In the case that ownership can be fairly attributed, inventing76. Without the need to conclude in a certain regime, then the lack of moral justification for the designation of an AI as there seems to be a number of possibilities that one can take in inventor, or rather the presence of the moral justification to deny order to answer the question of ownership, and all lead to justified people who did not have a significant contribution to the allocations. inventive process of an AI generated invention, should be enough in allowing such a deviation in the patent system. However, an issue that is significant and has to addressed, although not in this 8. Preliminary conclusions /thoughts paper, is the challenges that the capability of an AI to produce massive volumes of "inventions" every day will bring forth in the The normative question, in the end, boils down to whether AIs patent system in terms of saturation of the patent market and not being persons is reason enough to exclude them from patent magnification of the State of the Art and its effect on the non- inventorship. Ryan Abbott suggests that if that is the case, it obviousness and novelty tests. Of course, this whole discussion is would be better to prohibit it explicitly rather that relying on the only relevant in the cases that the AI would be the sole contributor implied intentions of the legislator to grant this privilege only to in the "conception" of the novel idea. Otherwise, granting human beings77. The fundamental question, however, that inventorship to a person that indeed invented patentable content rationally proceeds the previous one is whether AI innovations alongside the assistance of an AI would be completely consistent should be granted patents. This issue should be balanced between with the purposes of Patent Law. the disruption of the current patent system from the volume of the new patented inventions and the social loss generated from the nondisclosure of these new technologies. Because in the end, 7. Allocation of ownership rights in case of as EPO explained in the DABUS case78, it is for the public or the patented inventions actual inventor to challenge the designation of the inventor, which means that most of the times a person will still be able to The fact that computers do not have a legal personality and thus apply for a patent and not disclose that the invention was created cannot own property is pretty straightforward. Also, computer by an AI. The AI will never challenge the designation and the personality is still not close enough to start regulating this way68. public will rarely know or act. The hypothesis is based on the fact Thus, in the case that we decide to designate AI as inventors there that this already happens for decades as we already discussed 79. should be implemented provisions regarding the assignment of ownership of the patented inventions. Ownership rights will create strong economic incentives for the utilization of creative 9. Conclusion computers69. Hence, the correct allocation of ownership rights is crucial to the shaping of the new patent landscape, or is it? Addressing the issue of inventive computers and the possibility of According to the Coase Theorem70, which advocates economic them being identified as inventors in patents is a challenging task efficiency (meaning a situation where all parties benefit to the with many obstacles and various sections. This paper argues that maximum amount of not harming other parties), the one that most the underlying problem behind the designation is whether it values the product will take the appropriate actions to ultimately would be beneficial to grant patents to AI all together. If patents own it. An ownership right is transferable and thus can be sold are deemed to not be the ideal regime to protect the inventions of and bought. It does not matter to whom it will be initially inventive computers, then other provisions should be applied; allocated, because the party that values it the most will eventually either other kinds of protection or a new sui generis system to buy it71. Of course, there will be a bigger margin for economic provide for these cases specifically. On the other hand, if he benefit if the rights are allocated correctly form the start. Michael legislator decides on using the patent system, this paper finds Schuster argues in his analysis of the subject that the entity that unjust and unreasonable to designate any human for the work done by a computer autonomously (for high level autonomous AI 14Jo Best, 'IBM Watson: The inside story of how the Jeopardy- creative computers). The two choices left, are either to identify the winning supercomputer was born, and what it wants to do next', machine itself as an inventor or to create a genuine category of (TECHREPUBLIC, 9 Sept, 2013) patents with no inventors. The incentives that are necessary, since whereas inventorship provides moral incentives and recognition, 15Ryan Abbott, (n4). things unneeded for a machine. The ownership of the patents 16Shlomit Yanisky Ravid & Xiaoqiong (Jackie) Liu (n3) could be assigned by default to the owner of the AI with the 17Dana S. Rao, 'Neural Networks: Here, There, and Everywhere - exception of a different agreement between the parties. The An Examination of Available Intellectual Property Protection for versatility of such a regime will provide the market with new Neural Networks in Europe and the United States', (1997) 30 GEO. dynamics and incentives for a variety of workers, since the WASH. J. INT’L L. & ECON. 509 demand for these experts will rise to meet the demand of the 18Ray Kurzweil, How to create a mind: The secret of human thought machines. revealed, (2012) Viking Press 124 19'What Is the Ultimate Idea?', IMAGINATION ENGINES INC., http://www.imagination-engines.com [https://perma.cc/P877- 10. Endnotes F33B] 20Tina Hesman, 'Stephen Thaler’s Computer Creativity Machine 1Michael Schuster, 'Artificial Intelligence and Patent Ownership' Simulates the Human Brain', (ST. LOUIS POST-DISPATCH, Jan. (2018) 76 W&L Law Review 1945 24, 2004), available at 2Liana Baker, 'Tech Moguls Declare Era of Artificial Intelligence' http://www.mindfully.org/Technology/2004/Creativity-Machine- (Thompson Reuters, 3 June 2016) haler24jan04.htm> accessed 2 May 2020 22Tina Hesman, (n20) accessed 1 May 2020 23U.S. Patent No. '851 (filed July 12, 2002) 3Shlomit Yanisky Ravid & Xiaoqiong (Jackie) Liu, 'When artificial 24Ryan Abbott, (n4). intelligence systems produce inventions: An alternative model for 25Telephone Interview with John Koza, President, Genetic patent law at the 3A era', (2018) 39 Cardozo Law Review 2215 Programming Inc. (Jan. 22, 2016) 4Ryan Abbott, I Think, Therefore I Invent: Creative Computers 26Ryan Abbott, (n4). and the Future of Patent Law, (2016) 57 B.C. L. REV. 1079, 1080 27Ryan Abbott, 'The artificial inventor project',(WIPO Magazine, 5Ray Kurzweil, 'The Virtual Thomas Edison', (TIME, Dec. 3, 2018) Dec 2019) accessed 1 May 2020 html> 6World Intellectual Property Organization, ‘Impact of Artificial 28Patents, World Intellectual Property Organization, available at Intelligence on IP Policy: Call for Comments' http://www.wipo.int/patents/en/. http://innovation.unh.edu/patent-protection, Accessed 5 May 2020 30Noam Shemtov, 'A study on inventorship in inventions 7European Patent Office, EP 18 275 163 and EP 18 275 174 (2018) involving AI activity', (2019) Commissioned by the European 8Matthew U. Scherer, 'Regulating Artificial Intelligent Systems: Patent Office Risks, Challenges, Competencies, and Strategies' (2016) 29 HARV. 31Francesco Banterle, 'Ownership of inventions created by J.L. & TECH. 353, 354–55 at 360. 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