The age of machines is truly upon us: for the first time, patent applications are being filed in the name of a non-human (AI) inventor.
As reported in the press earlier this month, a group of scientists from the University of Surrey have filed various patent applications in Europe and the US on behalf of 'Dabus' (Device for the Autonomous Bootstrapping of Unified Sentience), an intelligent 'Creativity Machine' which combines the memories of various learned elements to hypothesize and evaluate potential inventions (further explanation of this process is provided on FAQs from the scientific team). The inventions sought to be protected are a device for attracting attention for use in search and rescue and a type of drinks container.
Can a machine or algorithm rely on patent law?
While the inventiveness of these concepts is not in issue – indeed the UKIPO has indicated that both the container and device are new, inventive and industrially applicable – this development raises complex and controversial questions about whether or not non-human inventors should be able to obtain patent protection. What might this look like in practice? Who is the 'inventor' and who should own the patent?
Under UK patent law it is not clear whether the inventor of a patent needs to be a natural person: the Patents Act 1977 defines this party only as "the actual deviser of the invention." The Dabus team argues that machines should fall within this definition, where they are (e.g.) not created to solve any particular problem and personally identify the novelty and salience of an invention. However, it is unclear whether this type of machine, or a machine whose output (e.g.) needs to be 'translated' by scientists or patent attorneys in order to be understandable by the skilled person, would in fact be considered an inventor under the law.
The question of who would own the resulting patent is also controversial. It is true that a patent may be granted to the inventor or joint inventors, and that this need not be a natural person (e.g. a corporate entity) – however, the owner of an IP right must have a legal personality; machines do not. As a potential solution, the Dabus team advocates a position whereby the AI is the inventor but where the AI's human owner owns the patents on any of the AI-generated inventions. However, this seems jarringly at odds with the concept that the machine is the inventor – if this is the case, what right does the AI's owner have to the AI's invention?
How is the landscape of patent law likely to change in future?
The UKIPO and EUIPO are likely to have to confront these issues on an increasingly regular basis as machine-learning methods become more advanced. As demonstrated by Dabus, a machine or algorithm is able to identify inventive concepts purely by identifying gaps in pre-existing applications of known concepts, and perhaps can do so more easily than a human can.
It is also possible that these issues will have to be addressed at a legislative level: for example, should machines could be given a limited form of legal personality (like a company), or – conversely – be excluded from the definition of 'inventor'? With the possible advent of Brexit, it seems important that UK law incentivises the development of and investment in intelligent machines, which are likely to prove critical in scientific and other discoveries in the coming years.
What about other IP rights?
The question of whether the creative output of machines can be protected by IP rights is not confined to patents: recent developments have seen machines generate independent pieces of literary fiction, compose music, and create art (with varying levels of success!), meaning that the EUIPO and UKIPO will likely soon face the same challenges in relation to copyright and designs law. However, the outcome of such decisions is less unpredictable: both the Copyright, Designs and Patents Act 1988 and the Registered Designs Act 1949 provide that computer-generated designs and literary and other works are taken to be authored by the person who made the arrangements necessary for the creation of the design or work, but this is still likely to prove controversial.
It remains to be seen whether patent law will move in a similar direction.