AI patents decrease innovation – licensing requirements kill AI inventions

[Jessica, 2023, Let Me Get My Human for That: The Struggles of A Broken Patent System for Al Inventors, Southwestern Journal of International Law, 29(1), 160-186. https://heinonline.org/HOL/P?h=hein.journals/sjlta29&i=166]

Allowing Al inventors to hold patents will decrease innovation because the invention will essentially become dead since Al cannot license or produce it because Al is merely a shell for its owners. As property, it will never meet the human threshold needed to own property itself or to enter contracts. These functions are essential to the furtherance of the invention. One of the many legal rights granted to the patent owner is the power to give permission or to license third parties to use the invention based on agreed upon terms. 85 The patent owner also can sell the patent to another owner.86 All of these scenarios would involve the inventor to grant legal rights to another person. Traditionally, this transfer of rights occurs through a contract. The basic elements of a legally enforceable contract in the U.S. include mutual assent, expressed by a valid offer and acceptance; consideration; capacity; and legality.8 7 Al would have difficulties satisfying these elements. The Restatement of Contracts defines consideration in terms of exchange and requires that a promise be supported by consideration in order to be legally enforceable. 88 Considering that Al is property itself, and cannot legally own or transfer property to another, Al cannot properly give adequate consideration. Second, having the capacity to legally enter a contract means a person is of "legal capacity to incur at least voidable contractual duties,"89 and someone who is not "under guardianship, or an infant, or mentally ill or defective, or intoxicated." 90 AI neither meets the qualification of being "a person," and opponents of Al patent rights will argue that Al is not "of sound mind." Thus, Al cannot legally enter contracts to promote the furtherance of its invention.

However, Thaler would argue that he orchestrated a legal assignment when he appealed the decision of the USPTO on DABUS's behalf. As noted above, Thaler attached an "Assignment" contract, which stated that DABUS assigned Thaler all intellectual property rights in DABUS's inventions to Thaler. 9 1 He signed the contract as both the assignor and assignee. 92 The contract, in essence, allowed Thaler to keep DABUS named as the inventor but gave Thaler the ability to orchestrate business functions. No consideration accompanied the contract. 93 Although the Assignment stated that Thaler "acknowledges the receipt and sufficiency of good and valuable consideration for this assignment," still, DABUS offered no consideration. 94 Contract law requires that a party gives consideration in the course and dealings of an assignment, and thus, Al should not have an exception when entering into contracts. Thus, until Al can legally and properly give adequate consideration, all Al contracts, including Thaler's Assignment in the U.S. appeal, should remain illegal.

Proponents who believe that Al should own patents believe that Al furthers the goals of the patent system by encouraging innovation. 95 They argue that Al brings a different perspective to the inventing world and can provide machine-made solutions to human problems, perhaps more efficiently and creatively than a human could. 96 They believe Al will create more breakthroughs, which would further benefit society. 97 Abbott, Thaler's counterpart, argues that allowing for AI-generated patents "would make inventive Al more valuable and incentivize Al development, which would translate to rewards for effort upstream from the stage of invention and ultimately result in more innovation." 98 If Al receives recognition and protection over its inventions, proponents believe that the AI's creators will "be motivated to create more and better AIs-which will in turn develop new and better ideas to improve human well-being."9 9

While proponents of Al patent ownership argue that Al needs this power to further promote computer-generated innovation, Al patent owners would actually decrease innovation. If Al were to receive inventor rights, it would be the sole individual capable of licensing and granting use of its inventions to third parties. However, based on the above, Al cannot legally enter contracts, and thus, its inventions would be at a complete standstill. To further the process of innovation, humans must play a role in the business dealings for AI-created inventions