Eliminates economic incentives

III. Do current patent laws and regulations regarding inventorship need to be revised to take into account inventions where an entity or entities other than a natural person contributed to the conception of an invention?

Q3: Do current patent laws and regulations regarding inventorship need to be revised to take into account inventions where an entity or entities other than a natural person contributed to the conception of an invention?

Patent laws and regulations would need to revised to recognize AI inventorship, assuming policy called for permitting AI-created inventions to be patentable. But as previously noted, the Section generally opposes recognizing AI inventorship. Therefore, even though laws and regulations would need to be revised to recognize AI inventorship, they should not be.

Current statutory and case law frameworks would not recognize AI-created inventions and only permit patenting by inventions involving human conceptualization. Foundational to the US patent system is safeguarding the rights and privileges of an inventor. 37 Inventorship is tightly linked to a human’s mental act of “conception.”38 “[Conception] is the formation in the mind of the inventor, of a definite and permanent idea of the complete and operative invention.”39 Consequently, AI-inventions are patentable only where there is a human who is eligible as an inventor. Therefore, Congressional legislation would be necessary to effectuate patents protecting AIcreated inventions.

Nevertheless, AI-inventorship should not be codified or otherwise recognized. In order to recognize AI-created inventions, the US would have to abandon, as a policy matter, the basic notion of granting the monopoly reward for human ingenuity. Rather, inventions could be the result of automated iterations of inventive question/answer trials, which, eventually, a computer might pose to itself and solve. Ultimately, the Section believes that “automated invention” would not serve the policy ends of US patent law—e.g., rewarding human ingenuity.

IV. Should an entity or entities other than a natural person, or company to which a natural person assigns an invention, be able to own a patent on the AI invention?

Q4: Should an entity or entities other than a natural person, or company to which a natural person assigns an invention, be able to own a patent on the AI invention? For example: should a company who trains the artificial intelligence process that creates the invention be able to be an owner?

As an initial matter, the Section is cautious of expressing a view that is too broad, and extends beyond the purposes of this RFC. The definition of “entity or entities other than a . . . company to which a natural person assigns invention” is essentially boundless and might prompt overly broad responses. The Section has limited its response to this question to a narrower scope in the spirit of this RFC—i.e., an AI, a natural person, and recognized forms of legal entities. Other unforeseen or (as of yet) undefined entities are the subject for another day.

To the extent this question contemplates ownership by an AI itself, the Section generally opposes recognizing an AI as an owner or other type of rights-holder. AI ownership is not only undesirable as policy matter, it is also unworkable. For instance, the US and its constituent sovereignties would have to recognize that an AI may own property. This raises broader questions of “personhood” of an AI, which are outside the purview of patent law.

In nearly all other foreseeable scenarios under consideration for AI inventions, the extant ownership regime generally serves desirable policy outcomes, and the mechanisms of assignment by a human-inventor to an autonomous legal entities (e.g., corporations, LLCs) remains workable.

Turning to the example offered by the Office in the RFC, the exemplary question posed by the Office is an issue of “conception” and “contribution,” rather than ownership. The Section believes these issues are satisfactorily addressed within those legal frameworks. In particular, certain AI-training efforts may qualify as “conception” (as offered in response to Question #2), and such conception may be made by a person who works for a company that “trains” an AI instrumentality (or specifies that training) or jointly conceives with another person who conceived another aspect. As such, the issue, here, is one of conception, not ownership. Put another way, even if a company trained an AI process (either its own or one belonging to a third-party) and that AI process then creates some invention, there can be no patentable invention without human conception, in which case there are patent rights to own. An instrumentality need not be considered an inventor any more than a polymerase chain reactor and gene sequencer.