That is a reasonable way to interpret the conception requirement—they’re tools for assistance—that’s Cardozo and…

In view of the foregoing, it appears clear that ML systems do not replace human problem-solving skills, and the assumption that an ML system can solve a given problem by itself is unfounded.

As a general principle, a normative analysis should be undertaken if there is genuine uncertainty about the appropriateness of the existing legal order. Hence, the currently applicable definitional criteria for inventorship should serve as a starting point. In this regard, the study by Shemtov50 on the concept of inventorship in the context of AI concludes that ‘[c]reative or intelligent conception of the invention, or contribution thereto, is a feature that runs either explicitly or implicitly throughout the definition of inventorship in all of the [examined] jurisdictions’.51 To meet this requirement, the ‘engagement in the conception phase [should go] beyond the provision of abstract ideas on the one hand, and mere execution of those provided by others on the other hand’,52 while such engagement should be made ‘on an intelligent and creative level rather than financial, material or mere administrative level’.53 In the subsequent analysis, this paper will rely on this standard as a general guiding principle, while it is recognised that jurisdictions might differ in fleshing out the concept of the inventor in further detail.54

As mentioned above, ML algorithms usually require special-purpose adjustment. Hence, it appears appropriate to refer to the decision-making in applying ML techniques to a technical problem at hand as a proxy for the ‘intelligent’ engagement in the invention conception in situations where ML is used in the inventive process. Accordingly, as long as the use of problem-solving tools and techniques is not prejudicial to allocating the inventor’s rights to a human, the person applying ML and making necessary decisions to solve a technical problem can be deemed an inventor or a co-inventor where such process involves joint (human) effort, provided that the coinventorship criteria are fulfilled.55 In contrast, the one who develops the basic algorithm of a general-purpose nature (such as backpropagation56) but is not involved in its application to a specific task should not be credited with solving a problem or be regarded as an inventor. Furthermore, even though the inventorship standard applied to humans cannot be directly transposed to human-computer interaction, the underlying principle that the mere implementation of instructions should not suffice for the inventor entitlement can counteract the claims that the computer should be deemed a standalone inventor.57