Inventorship is critical to leadership---a fundamental rethink of patent law is necessary.

I. CONSIDERING AI INVENTORSHIP IN THE U.S. AI inventorship has not been recognized in the U.S. despite a dramatic increase in the development and use of AI technologies. In 2017, an economic study showed that 550 start-ups using AI as a core part of their products raised $5 billion in funding with 60% of that funding going into American companies.97 Moreover, the American Intellectual Property Law Association estimated the annual investments directly in AI technologies in 2017 reached $26-39 billion.98 Alongside this investment, the employment market for deep learning researchers has boomed with some researchers obtained through mergers and acquisitions being valued at nearly $10 million.99 AI commercialization is expected to reach $190 billion by 2025.100 While investment in AI has dramatically increased, the USPTO has not been receiving a similar increase in applications claiming computers as the inventor.101 This suggests that applicants are choosing not to disclose the AI in the inventive process.102 This trend of obscuring AI involvement in the inventive process highlights the legal risks of listing a non-human inventor. While the practice of listing humans who utilize inventing-AI has worked for the U.S. system so far, it fails to further incentivize the use of inventing-AI.103 For example, corporations, research institutions, and investors may be dissuaded from using inventing-AI to fully automate innovation because it amplifies the uncertainty and administrative burden of obtaining a patent on the resulting invention. By requiring a natural person to be listed as an inventor, the U.S. unnecessarily maintains a cost-inefficient status quo. Should the U.S. recognize AI inventorship, it could drastically change industries whose R&D costs have been ballooning just to maintain historical rates of useful, patentable discoveries.104 AI inventorship is a critical step in unlocking inventing-AI's potential to promote innovation within the patent landscape. Several reasons supporting AI inventorship are discussed below. II. SUPPORTING THE ECONOMIC-UTILITARIAN RATIONALE The rationale for AI inventorship is strongest under a utilitarian-economic incentive theory ("UEI") because the Constitution provides "explicit rationale" for granting patent protection to encourage innovation.105 Inventorship and the subsequent patent ownership rights are necessary to economically incentivize investment in innovation, but this must be balanced against the social cost of granting a government-sanctioned monopoly that can limit the diffusion of knowledge.106 This balancing is necessary to achieve the ultimate goal of advancing public welfare.107 A. Competitive Advantage in Innovation First, allowing AI inventorship may put the U.S. patent regime at a competitive advantage relative to its peers. In the past, the U.S. patent system gained a competitive advantage by allowing man-made organisms to be patentable subject matter.108 Similarly, allowing for AI inventorship could spur the use and development of inventing-AI. To illustrate this, the USPTO allowed the first transgenic animal, the "Harvard Mouse," to be patented in the wake of Diamond v. Chakrabarty, 47 U.S. 303 (1980), which allowed man-made organisms to be patentable subject matter.109 Biotechnology patents post-Chakrabarty were focused on whether the invention constituted patentable subject matter, rather than the morality of the invention.110 The USPTO left the ethical questions to the legislature and executive branches.111 The same "Harvard Mouse" patent was submitted to the EPO, but was contested under EPC Article 53 due to ethical concerns.112 This required the EPO Examining Division "to weigh the suffering of animals and possible risks to the environment on the one hand, and the invention's usefulness to mankind on the other."113 While the EPO ultimately granted the patent, the codified moral utility requirement opened grounds for litigation and invalidation within the EPC. The EPC's lack of legal certainty and potentially disparate applications of the moral utility doctrine placed the European patent system at a relative disadvantage to the US patent system.114 AI inventorship could give the U.S. patent system a similar innovative edge. Where other regimes hesitate to expand inventorship to inventing-AI, the USPTO could challenge the status quo. Just as it had deferred judgments of morality regarding man-made organisms, the USPTO can similarly discount mental acts as an exclusively human capability. Doing so could focus patent law on the "nature of the invention itself rather than the subjective mental processes by which an invention may have been achieved."115 Allowing AI inventorship would remove the legal uncertainty surrounding the validity of inventing-AI created patents, thus incentivizing an underutilized avenue to generate innovative patents. For example, the USPTO has seen increases in recent years in the number of first and second AI-related patent filings due to the large community of AI inventors in the U.S.116 and allowing for AI inventorship could further fuel this trend.