Undermines case for human inventions—AI won’t get them anyway

In a similar vein, there are some people in the field of intellectual property who are starting to ask questions about whether computers can be ‘creative’ or ‘inventive’ and, if so, whether it should be possible for a computer to be named as an inventor on a patent application – or, conversely, whether some humans should be disentitled from inventorship on the basis that their computers, rather than themselves, were the true inventors. One academic who has been making a name for himself in this emerging field of study is Professor of Law and Health Sciences at the University of Surrey, Ryan Abbott. Professor Abbott is the author of, among other works on the topic, ‘I Think, Therefore I Invent: Creative Computers and the Future of Patent Law’, Boston College Law Review, Vol. 57, No. 4, 2016 (also available at SSRN), in which he argues that the law should embrace treating non-humans as inventors because this ‘would incentivize the creation of intellectual property by encouraging the development of creative computers.’

As I shall explain, however, I do not agree with Professor Abbott that computers can, or should, be regarded as inventors for the purpose of granting patents. Furthermore, while Abbott accepts claims that patents have already been granted on what he calls ‘computational inventions’, I firmly believe that a computer is yet to ‘invent’ anything. In my view, the researchers and technologists who claim otherwise have an interest in promoting a particular perspective, and in doing so they are subtly extending the definitions of ‘creation’ and ‘invention’ to encompass the contribution of their machines, to the detriment of the human operators who are responsible for providing the true creative input in the process.

I am further concerned that, should this view of ‘machine as (co)inventor’ prevail, it will in fact be to the detriment of the patent system. I think it highly unlikely that lawmakers – whether they be legislators or common-law judges – will embrace the idea of granting patents on machine inventions. On the contrary, it seems far more probable that if the notion takes hold that computers are actually doing the ‘inventing’ in many cases, it will simply become even more difficult for humans to secure patent protection for computer-implemented, or computer-assisted, inventions.