Patent law has a stable foundation to determine both contribution and conception—usage of the AI would be incorporated as part of the ‘ordinary skill of art.’

In advising the World Intellectual Property Organization, the ABA Section of Intellectual Property Law resolved (1) that a patent should always name a human as an inventor and (2) that Al may not qualify as an inventor. 161 The conception requirement under U.S. patent law provides the foundation for these conclusions. 6 2 Joint inventors may perform only a part of the effort to produce the invention, and need not make the same type or amount of contribution.1 63 Where the inventive process involves AI, the patent application may attribute conception to a human who puts in motion and provides any input that the Al uses to reduce the invention to practice,16" for example, a person recognizing an inventive intermediate or final result for patenting.1 65 The ABA Section further maintains that determination of whether the human's efforts amount to the conception or mere use of software should continue to be made by fact-finding administratively and judicially under existing law.1" Therefore, the issue of determining the inventor does not introduce a new issue nor require a new means of determination.

The Multiplayer Model seems to overstate the difficulty of determining who conceived the invention.1 67 The model emphasizes the difficulty in identifying the inventor because of the number of individuals who contribute to even a minute portion of the inventive process. However, inventorship need not depend on a single person nor include those that reduce the invention to practice." Inventors benefit from the use of computers, the Internet, and research assistants in the reduction to practice, but it is in the conception of the invention that matters for inventorship. This model effectively illustrates the problem linked with inventive AI but bars the patentability of AI-assisted inventions without giving the inventor a chance of identifying the contributing human inventors.

Because the independent-thinking Skynet type of Al that society has come to fear-artificial general intelligence-does not yet exist, the user's contribution to the Al invention justifies at least an attempt at modifying the non-obvious standard to enable the patentability of AI-assisted inventions.'69 Moreover, the user's contributions to the invention offer perspective from which to establish the level of ordinary skill in the art. Although the machine learns through pattern recognition more efficiently than a human, the machine still depends on user control. 170 For instance, the user must first compile, and potentially refine, massive amounts of data to make it accessible to the machine.' 7 ' The user may narrow and filter this data for specificity as in "deep data" or maintain the data as vast and unsorted "big data." 1 2 The user must then choose a method of machine learning, based on the user's determined objective, not the machine's secret motives. The user can select from three common forms of machine learning-supervised, unsupervised, and reinforcement-that offer varying benefits based on the user's knowledge of the data and the expected result. 173 Thus, the dataset and the form of machine learning chosen, in addition to the input parameters controlled by the user, form the basis of determining the ordinary skill in the art from the user perspective.