The question of where artificial intelligence sits in the legal personality stack isn’t as simple as it might seem (i.e. “nowhere”) — but the US Patent and Trademark Office said today that, as with other intellectual property rights , only one person can receive official protections.
The news came via “guidance,” a formal policy but not an ironclad rule, that is soon to be entered into the Federal Register. The guidance document (PDF) clarifies that for clear legal reasons, as well as the idea that, essentially, “patents function to incentivize and reward human ingenuity,” only “natural persons” can obtain patents.
It’s not necessarily obvious when you think about how, for example, corporations are considered people for some legal purposes, but not for others. Not being citizens, they cannot vote, but as legal entities, their speech is protected by the first amendment.
There was a legal question about whether, when a patent is being assessed for grant to a “person,” that person must be a human or whether an artificial intelligence model can be a person. The precedent made it clear (the guidance summarizes) that person means human unless expressly stated otherwise. However, it was still an open question whether or how to cite or award an AI-assisted invention application.
For example, if a person designed an artificial intelligence model, and that artificial intelligence model independently designed the shape and mechanism of a patented device, is that artificial intelligence a “joint inventor” or a “co-inventor”? Or, does the lack of a human inventor in this case preclude the patentability of this device at all?
The USPTO’s guidance makes clear that while AI-assisted inventions are not “categorically unpatentable,” AI systems themselves are not individuals and therefore cannot be inventors, legally speaking. It therefore follows that at least one man must be named as the inventor of any particular claim. (There are actually some interesting parallels with the infamous Selfie monkey case. — where the monkey taking the photo obviously can’t have copyright, because copyright must belong to legal entities, and monkeys, though they are many, are not.)
They must, however, show that they “made a significant contribution” to the invention, and this is not necessarily straightforward. Navigating the document on how this is actually defined makes for some pretty interesting reading:
Simply identifying a problem or pursuing a general goal or research plan does not rise to the level of conception. A natural person who presents a problem only in an AI system may not be a proper inventor or joint inventor of an invention identified by the output of the AI system. However, an important contribution could be seen from the way the person constructs the prompt in the face of a particular problem to derive a particular solution from the AI system.
…A natural person who merely recognizes and appreciates the result of an artificial intelligence system as an invention, particularly when the properties and utility of the product are apparent to those of ordinary skill, is not necessarily an inventor. However, a person who takes the output of an artificial intelligence system and contributes significantly to the output to create an invention can be a proper inventor.
Retaining “intellectual ownership” in an artificial intelligence system does not, by itself, make a person the inventor of any inventions created through the use of the artificial intelligence system.59 Therefore, a person who merely owns or supervises an artificial intelligence system that is used in Creating an invention, without providing a significant contribution to the conception of the invention, does not make that person an inventor.
In other words, there’s a kind of logic pattern at play here that anyone applying for a patent will already know, but which in the context of artificial intelligence doesn’t have many precedents to cite. That’s why guidance exists. No one needs to worry now if, because someone “retains intellectual mastery” over an AI, all of its effects count as their own inventions.
The USPTO is careful to state that it does not in any way attempt to define or limit what artificial intelligence does or is, or how humans should use it. It is simply an application of existing law and precedent to a new technology. If Congress passes a law tomorrow that says AI counts as a human for intellectual property purposes, the USPTO will strike “repeal” this whole thing and come up with new guidelines for granting AI patents. But until then, AI is still just a piece of software, and humans are the ones whose work is meant to be rewarded and protected.
