The prospect of holding a patent will not directly motivate an AI, but it will encourage some of the people who develop, own, and use AI. Patent protection should be available for AI-generated works because it will incentivize innovation. Why patent protection for AI-generated inventions is necessary As a result, the merits of the human authorship requirement have never been tested in court. However, the case was dismissed because the United States Congress had not authorized animals to sue under the Copyright Act. People for the Ethical Treatment of Animals (PETA) sued on Naruto’s behalf, arguing he should own the copyright in the photographs.
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The human authorship policy came into public view with the “Monkey selfies” case, which involved a series of images taken by an Indonesian crested macaque named Naruto. In IP as well as many other areas of the law, the phenomenon of AI stepping into the shoes of people promises to be profoundly disruptive. That makes it very tempting to take credit for an AI-generated work, such as a song or an artwork, that you think has commercial value – the AI is unlikely to complain. Since at least 1973, it has applied a “human authorship policy” that prohibits copyright protection of works that are not generated by a human author. The United States Copyright Office has taken the opposite approach. In circumstances where an otherwise copyrightable work is created but no natural person qualifies as an author, the “producer” of the work is deemed to be the author. In 1988, the United Kingdom became the first country to provide explicit copyright protection for AI or “computer-generated” works. There has been more discussion about AI-generated works and copyright law. Recent developments in copyright law with respect to AI However, these laws were created without regard to the future possibility of inventive activity by machines. Even when an inventor does not own a patent, laws requiring a natural person to be listed as an inventor ensure that people receive due credit. For example, in many jurisdictions, ownership passes automatically to an employer if an invention is created within the scope of employment. Ownership rights can pass from an individual to a company by contractual assignment or otherwise by virtue of law. Yet, inventors do not necessarily own their patents in fact, most patents are owned by businesses. This requirement is designed to protect and acknowledge the rights of human inventors. Most jurisdictions require patent applications to disclose an inventor who is a natural person. There is almost no law on AI-generated inventions. It is important that appropriate policies are put in place to deal with AI-generated works. Patent offices will not generally object to self-reported inventorship some of the earliest applicants for AI-generated inventions say their attorneys advised them to list themselves as inventors. People have claimed to have secured patents for AI-generated inventions since at least the 1980s, but no one has ever disclosed an AI’s role in such a patent application. (Photo: PhonlamaiPhoto / iStock / Getty Images Plus) The state of play Their aim? To challenge established norms around inventorship. This is notable because most jurisdictions only recognize humans as inventors. In 2019, the Artificial Inventor Project team submitted patent applications listing DABUS (a type of AI-based “creativity machine”) as the inventor. The applications have also been filed under the Patent Cooperation Treaty – which facilitates the process of obtaining patent protection in over 150 countries – and are currently pending examination in a growing number of patent offices. Both offices found that the applications meet the requirements of patentability to the extent possible prior to the publication of the applications. The European Patent Office (EPO) and United Kingdom Intellectual Property Office (UKIPO) have already evaluated these applications on their merits. These applications list the AI as the inventor and the AI’s owner as the patent applicant and the prospective owner of any issued patents. In August 2019, our team (see below) announced two international patent filings for “AI-generated inventions.” That is to say, inventions generated autonomously by an artificial intelligence (AI) under circumstances in which we believe that no natural person, as traditionally defined, qualifies as an inventor. By Ryan Abbott, MD, JD, MTOM, Professor of Law and Health Sciences at University of Surrey, UK, and Adjunct Assistant Professor of Medicine at UCLA, California, USA