Court Rules That Artificial Intelligence Cannot Be an Inventor

Imagine the disappointment on the minds of Data ("Star Trek—The Next Generation") and HAL9000 (2001: A Space Odyssey)! They now know that the U.S. Court of Appeals for the Federal Circuit has just come down with a decision that is certain to be a disappointment to these two sentient beings of science fiction film and television.¹

But this is no longer science fiction. We now have true mechanical or technological sentient beings that really exist in our world.

One of those sentient beings just made two inventions all on its own. Stephen Thaler, the plaintiff in this case, develops and runs AI² systems that generate patentable inventions. One such system is DABUS (Device for the Bootstrapping of Unified Science). It is, according to Thaler, "a collection of source code or programming and a software program."

Thaler listed DABUS as the inventor on two applications for inventions DABUS generated. In lieu of a last name on the applications, Thaler wrote that "the invention [was] generated by artificial intelligence." Thaler submitted a sworn oath or declaration on behalf of DABUS. He also submitted a supplemental “Statement on Inventorship.” He explained that DABUS is "a particular type of connectionist artificial intelligence" called a "Creativity Machine." The Patent and Trademark Office (PTO) concluded both applications lacked a valid inventor. The District Court agreed to adjudicate the issue, agreed with the PTO, and granted summary judgment in its favor. It said an “individual” (required to be an inventor) means a “natural person.” The Appellate Court, 4th Circuit, has now affirmed the District Court, emphasizing that an inventor under “our Patent Act” must be a human being.  Thaler had pointed out that South Africa had accepted DABUS as an inventor for purposes of its Patent Act.

It is my assumption that Thaler is trying to make a point here. My guess is that, if he had simply changed the application to make himself the inventor, since he is the inventor of DABUS, the applications would be accepted. This whole matter does point out the obvious: With AI advancing and advancing quickly, what will we do about AI inventions? Must they all have a human sponsor? What if an AI machine is replicated and invents something? Who is the inventor for purposes of obtaining a patent? Is it the owner of the replicated machine or the ”inventor” of the original machine? I suggest to the PTO that, rather than continue to litigate this issue, it get on top of this and suggest a reasonable solution to Congress so that the law can be changed to keep up with the advance of technology and AI. And maybe they are working on it. I hope so.

This article has been revised to reflect the correct circuit for the case.

² Artificial intelligence.