Patents on AI creations should go to the human

The increasing use of sophisticated Artificial Intelligence (AI) technologies in conceptualizing new inventions has led to an intense international debate on patent law implications in relation to innovations generated by or with the assistance of AI technologies.1 In particular, can AI generate inventions autonomously, ie without a significant human contribution? If so, are such AI-generated inventions protected under current patent laws, and should they be? Who could and should be recognised as an inventor and owner of such patents? Stakeholders, policy makers, courts and academics around the world have been actively examining these issues.2 In parallel, a similar discussion is happening in other areas of IP law, such as copyright, with no international consensus on whether creations generated with assistance from AI could and should be afforded copyright protection.3 The importance of these issues is unquestionable: the decision to award or not award patent or copyright law protection for AI-generated outputs is likely to affect the future utilisation of AI technologies in innovation and creative processes as well as the further expansion of AI technology sectors around the globe.4 The recent UK Supreme Court decision in Thaler v Comptroller of Patents, Designs and Trademarks,5 which is a part of an international Artificial Inventor project led by Dr Stephen Thaler and his legal team,6 has provided an ultimate clarification on some of the questions regarding the patentability of AI-generated inventions, at least in the UK.7 Namely, the Supreme Court unanimously concluded that, under the Patents Act 1977, an AI system cannot be listed as an inventor in the patent application, and that the owner of the AI system that arguably generated the invention is not eligible to apply for a patent in this invention or to be granted a patent over it.8 This outcome is consistent with the outcomes of most other patent applications that Dr Thaler submitted in other jurisdictions and reinforces an emerging international consensus that AI cannot be an inventor for the purposes of current patent law.9 The next part of this note provides the factual background of Thaler v Comptroller of Patents, Designs and Trademarks and briefly reviews the decisions of the UK Intellectual Property Office (UKIPO), the High Court, the Court of Appeal and the UK Supreme Court. The following three parts focus on three main issues examined by the Supreme Court: i) whether AI can be listed as an inventor; ii) whether the AI owner can apply for and be granted a patent for an invention autonomously generated by a machine; and iii) whether the UKIPO can and should assess the truthfulness of the inventorship statement. The note concludes that the human-centric approach to inventorship, as adopted by the Supreme Court, is well-reasoned and maintains the internal consistency of the Patents Act 1977. While it might disincentivise the use and development of AI technologies with autonomous inventive possibilities, it helps ensure active human involvement in technologically-supported innovation and supports human ingenuity more generally. Further, despite the decision focussing on current patent law only, it will make it more difficult to advocate for future patent laws that include non-human inventors. In addition, the decision helps reveal challenges to and gaps in patent law that have emerged as a result of AI technologies, such as determining the ownership of AI-assisted inventions and ensuring the truthfulness of inventorship claims when AI is used in the inventive process. Such issues will require legal intervention and redress by law makers heading into the future as the use of AI is expected to proliferate.