Humans drive the process, even with ‘black boxes’

The manifest human guidance behind a factory assembly robot leaves no reason to believe that a machine that assembles other machines is an inventor, or an infringer, but anything other than a tool of the inventing or infringing humans who employed it. Yet when it comes to machine learning systems, the objection that might be raised against this logic is that AIs have "emergent" qualities, that their output is not pre-determined or specified in advance in the way that the output of an automobile factory robot would be. The activity of the factory floor robot is programmed and known (if it is not, then presumably something has gone terribly wrong). AI systems, on the other hand, are portrayed as developing unexpected and undetermined outputs, at least within the parameters specified in their design. For example, pharmaceutical design AIs may generate molecular structures and species that are unforeseen by the humans who set them in motion.

But, as discussed before with reference to biotechnology, patent law is already well familiar with biological machines that engage "emergent" processes and that assemble other devices--perhaps not fully autonomously, but by means of "black box" processes that humans do not fully understand. A machine that generates unforeseen outputs by design is by no means disengaged from human innovation; to the contrary, it is entirely the tool of human innovation. The specifics of an AI's output, or that of a hybridoma, may be unforeseen, but the general expectation of some output, and some output within a particular field, was surely intended in the machine's deployment by humans.

Thus, the apparent creativity of complex automated systems is an illusion of their opacity, and their apparent autonomy is an illusion of causative distance. As Carys Craig and Ian Kerr remind us in the copyright context, no AI system in fact functions autonomously. 65 There is always a vast array of human designers, programmers, trainers, and users behind any AI. Someone maintains the system, updates its software, makes certain it is plugged in to the electrical grid. Conceptually erasing all of those human personnel from the innovative process mistakenly valorizes and romanticizes the machine. 66