Friday, 16 June 2017

Who owns AI-generated inventions?

An article about AI recently made me think about whether AI-generated IP is a real thing, and whether it would be an issue for IP law as it currently stands. The article concentrates mainly on copyright, and comes to the conclusion that a human would still be the author of a work generated using an AI system. I don't generally deal with copyright stuff, but that seems fairly uncontroversial to me. There is also a short section on patents, in which an interesting hypothetical example is given of a case where inventorship might be in question. Here's the example:
"Person A builds an AI system for identifying the best material to use given a series of input parameters relating to a particular engineering context. Person B takes the system and uses it to search for the best material to use in the design of a tail fin for an unmanned aerial drone. Person C then looks at the three potential options identified by the system and decides to file a patent covering the use of the third material for tail fins in unmanned aerial drones, as they recognise that it will have particular technical [benefits]."
The question is then who is the inventor? An answer is not given in the article, which simply states that a court or patent office would need to decide who was entitled to be named. This to me seems to miss an important point or two, as well as being a bit of a cop-out.

Firstly, let's say the invention is about the use of a specified material in a tail fin for an aircraft (why it has to be an unmanned drone is not clear to me, so let's leave that aside). The inventive concept, given that tail fins for aircraft are known, is the use of the specific material.

Person A has devised a system for identifying a material given a series of inputs. By itself this has nothing to do with the invention, so this person can be discounted as being the "actual deviser of the invention" (section 7(3), UK Patents Act).

Person B has plugged some numbers into the system created by person A, and the system has output some candidates. Person B has not arrived at the invention, but if they had the thought of using the AI system to search for candidate materials they might be considered to be a joint inventor. This is similar to the concept of the skilled person being different for devising the invention compared to understanding the invention, something the case of Schlumberger v Electromagnetic Geoservices was concerned with. It is not clear from the example, but if person B had the idea of using the system to search for a candidate material, this connection could form at least part of the invention in the same way that the idea of connecting two separate technical fields to arrive at a new combination could be. Person B might, however, have been acting on orders from someone else, in which case another person might get involved.

Person C is the clearest one for being an (if not the) actual deviser of the invention, since they come up with the material on which the claimed invention is based. They should be a named inventor.

The solution to the problem is actually not really anything to do with AI. That might be to do with the example being a poor one, but it might also get to the point of whether an AI system can ever be considered to be an inventor if it needs to be given an input to provide a desired output. If an AI system can truly think for itself, it would not necessarily be possible to trace the particular input that generated a particular output (it might have been lots of different inputs, as would be the case for a human inventor), so identifying an inventor could prove more problematic. At the moment, however, as far as I am aware such a system does not exist.

A final point about the AI system in the example is also worth considering. What the example does not say is whether the AI system is publicly known or is secret. If the system is already known, the technical problem to be solved becomes how to select a material for a tail fin, to which at least part of the solution becomes obvious: ask the computer. Whether it would be obvious to select one material from three is another question. In some cases it might be.

Perhaps the lesson at the moment is that we are not yet in a position to even think clearly about whether an AI system can really be the actual deviser of an invention, for the simple reason that AI does not really exist yet. If it ever does (and, if Roger Penrose is correct, it might never happen), so many things would change that the question of deciding which entity is entitled to a patent may become insignificant.

UPDATE 22 June: For further reading here is a recent journal paper that goes over the points raised here, along with many others, and in a lot more detail.


  1. We all know "cogito ergo sum" but who knows the full quote "dubio ergo cogito, cogito ergo sum". It is all very well asserting that computers might one day be able to cogito. But until they dubio (doubt) they aren't even starting to think, are they?

    And if they don't think, they can't "invent" can they?

    I'm not computer scientist, but I should have thought that the concept of doubt is incompatible with man-made computers.

    1. Descartes' argument is that dubito implies cogito. But that does not mean there can be no cogito without dubito.

      I do wonder though if there can be an inventive step if the invention was made by a (known) machine...

    2. I'm obliged. Yes, I see your point in logic, that proving that computers don't do doubt is no proof that they don't "think".

      If we shift to arguing about what constitutes an "inventive step" we shift from the realm of logicians and philosophers to the world of patent lawyers. Americans might point to their 1952 law with its obviousness section. As I understand its genesis, it was to exclude any "inventive activity" component of patentable non-obviousness. I can well imagine that a number-crunching computer might spit out the chemical formula for a useful new drug, a formula not at all obvious to a person of ordinary skill in the drug formulation arts.

      But even then, my inclination would be to name as inventor the person who programmed that computer.

    3. Starting from D1 and the problem posed, the skilled person would trivially make himself a cup of coffee. Upon returning to his computer, he would be presented with the solution as claimed and thereby arrive at the claimed subject-matter without inventive activity.

  2. If Roger Penrose is correct, we just need to make the computers more squishy/qbitty. Quantum innit?

    I, for one, welcome our new bio-computer inventor overlords

  3. s9(3) CDPA1988 will help on the copyright front.

    For patents, it is always going to depend on the detail of each contribution. In that example, C is clearly an inventor and A clearly isn't. B might or might not be, depending on what they put into the system.

    AI is potentially a complicating factor, but so are plenty of other things (brainstorming session, anyone?). I think we have much more to fear from the development of time travel - that would instantly kill the patent system now, for ever more, and for the entirety of the past.

    1. But doesn't that prove that time travel will never be invented?

  4. But we already have AI creating music, so we havevthe issue of copyright ownership. More interesting for me is who is liable if AI infringes copyright of a third party human? And could a machine sue another machine? We are entering a period of.complex legal questions and issues!

    1. No we don't. As patently points out above, section 9(3) of the CDPA covers that one. Unless we have a computer making music without being instructed to, there isn't a problem with ownership of the copyright. As for infringement, if the computer generates a new piece and it has similarities to another piece, this is not necessarily infringement but could be independent creation unless the computer took the other piece as a starting point. The arguments would not be any more complex, and may even be easier to resolve, than for human created works.

  5. As with an AI creating music and elephants and apes painting pictures or photographing by pressing the release bottom of a camera, it has long been decided by the courts that these entities are not creators of artworks protected by copyright, for the very simple reason, that the originators cannot rationalize what they have created, or even (definitely in the case of the AI, less certain for the animals) realize that they have created.

    As for the example above, B is to be compared with a researcher doing research into a technical field, but only C is an inventor by realizing that the research of B can become an invention which is industrially applicable by selecting research result 3 for technical application. The AI, in this respect is merely a complicated device for selecting feasible solutions to a technical problem based on elaborate search criteria, but is, in itself a "dumb" machine which cannot provide information beyond its programming.

  6. If I use a calculator to work out an inventive value for the length of a component, then I am the inventor. AI is just a more complicated calculator. AI is a misnomer - it should be called Imitating Intelligence.