Issues they identify are minor—patent system readily adapts

In the case of the screwdriver or the drill, human direction and control are typically manifest and proximate. The human hand may be less apparent in the case of machines that are used to tool or assemble other machines. Over the past several decades, human intervention has become causally attenuated, so that the human prime mover may appear to have disappeared from the system. As mechanisms become more complex, human causation becomes more distant, but not necessarily less proximate--there is no obvious human agency directing the robots that assemble automobiles on a factory floor, yet we have no doubt that a human agency arranged, orchestrated, and initiated their activity. Human involvement in the chemical sciences is in some sense even more attenuated; human manipulation is not present or required in each reactive step. Rather, humans create the entropic conditions for reactions, and having initiated them, allow them to proceed. Biotechnological inventions encompass vast arrays of such reactions.

Patent inventorship and patent infringement may therefore be regarded as questions of causality--how far up the chain of causality must one look to find the human initiator? It may be that in some cases the human is sufficiently far removed that there is no inventor or infringer; if Bowman receives as a gift patented seeds that are caught by the wind and grow as sports in his field, perhaps he is no longer the proximate cause of making the claimed invention even if he is a cause in fact. Such matters of causality are old and familiar (if perhaps intractable) problems across the domains of law, spanning criminal culpability, tort liability, and a host of other areas. 67 Infringement causality is clearly undertheorized in patent law, as some commentators such as Amy Landers and Dmitry Karshtedt have begun to recognize. 68 Those cracks in patent causality have begun to show in recent decisions involving multiple actors and divided infringement, and will perhaps be salient in some future scenarios involving AIs.

But the law of patent invention has never had a causality requirement, at least not a physical causality requirement, because physical reduction to practice has never been a requirement for patentable invention. Quite the contrary, patent law recognizes "constructive reduction to practice" in the filing of an enabling disclosure in a patent application. 69Such "paper patents" disclose and claim inventions that have never been physically built or deployed; they exist only as the textual descriptions supplied by the inventor. The supposition behind this practice is that a detailed and enabling description is as good as a physical embodiment; once the mental work of invention has been done, those of ordinary skill can do the mundane work of implementation. 70

The result is that doctrines such as simultaneous conception and reduction to practice provide immediate answers to concerns regarding AI generated inventions, although such answers may not be fully satisfying. If self-assembling machines become sufficiently attenuated from human prime movers, we may no longer deem the human to be a proximate cause of the invention's reduction to practice, but recognition of the invention in the mind of a human will always yield an "inventor." Where infringement is concerned, attenuation between machine and human may reach a point that we are reluctant to assign liability to the human mover. But assessing when and where that point occurs requires a theory of infringement causation that patent law currently lacks. The commentary on AI innovation thus reveals a gap in patent doctrine, but not the gap that AI commentators thought they had identified.

Conclusion

AI systems promise to enable a host of technical advances, enormously enhancing human innovative capabilities. Patent law is fully equipped to encompass such innovative activity, as it has done in the past. The qualities of AI innovation that have been said to challenge the tenets of patenting are based on a category mistake, confusing the tool with the user. No one would seriously assert that the drill or screwdriver--much less the hydrocarbon cracking refinery or chromatographic column that is used to construct an invention--is an inventor, or even a co-inventor with the human deploying the equipment. Neither would anyone seriously assert that these devices are patent infringers if their outputs happen to coincide with the claims of an existing patent. The fact that recent commentary assigns such status to our latest and most complex tools--AI systems--indicates not some transcendent property of AI technology, but rather that the patent system has a latent deficit in doctrines of causality. Rather than continued hysteria over the emergent properties of AI, focusing on patent law's unfinished business with causality offers the more fruitful path forward.