http://ipkitten.blogspot.com/2019/08/the-first-ai-inventor-ipkat-searches.html
As has been recently widely reported (BBC, Financial Times and The Times), a number of patent applications have been filed designating a machine learning (ML) algorithm as an inventor. The aim of the applications appears to kickstart a conversation on how patent law could be changed to take account of AI inventorship. But before we answer the “could”, we need to answer the “should”. A claim of AI inventorship is also one that should be carefully examined. An AI that can understand the state of the art and articulate a meaningful and inventive contribution to the field, would be an incredible advance in machine learning.
AI inventor – searching for the evidence
| Dr Stephen Thaler |
Despite all the media attention, details about how the AI inventor actually invents are sparse. The reportedly inventive algorithm is covered by its own patent (US 2015/0379394) and was itself invented by Dr Stephen Thaler. A look at Dr Thaler’s company website (Imagination Engines) reveals that Dr Thaler purports to have invented neural networks that manifest “near-death experiences”. The networks also exhibit “a stream of consciousness” and “contemplate, invent, and discover”. The inventive AI is based on Dr Thaler’s “master equation that quantitatively predicts the rhythm of idea generation”. [“Does “idea generation” even have a rhythm?” asks Merpel.]
Despite the potentially revolutionary nature of his inventions, Dr Thaler has not published examples in which his “Creative Machines” are tested according to the standards tests for AI algorithms (e.g. as would be demanded for a publication at a major ML conference, such as NeurIPS, ICML or ICLR). If Dr Thaler has “derived a master equation that quantitatively predicts the rhythm of idea generation”, it would be normal to expect evidence of these quantitative predictions.
| Computer having a near-death experience |
The moment of invention
It could be argued that the algorithm’s inventions are themselves evidence of its inventive capacity. The applications naming the algorithm as an inventor relate to a food container (EP18275163, the corresponding US application can be seen here) and a flashing light to be used in emergency situations (EP18275174, the corresponding US application can be seen here). The University of Surrey press release indicates that the UK IPO has already found these inventions to be novel, inventive and to have industrial application. Of course, novel, inventive and industrial applicable subject matter is not necessarily commercially useful or practical.
Notably, despite relating to entirely different fields, both of the recently filed applications appear to be based on a similar concept: fractals. The food container has walls “having a fractal profile” and the flashing light randomly flashing according to a waveform “satisfying a fractal dimension equation” [Merpel: perhaps the “inventive algorithm” has made the surprising discovery that everything in life could be improved by basing it on fractals!]
Another intriguing (and unanswered) question is how the algorithm articulates its invention. The patent application claims seem to have been drafted by a patent attorney. The University of Surrey press release indicates that Dr Thaler is working with an international team of patent attorneys from Williams Powell, Flashpoint IP, Dennemeyer and Fuchs IP. In what form was the “invention” output from the algorithm handed to the patent attorneys? Was it in the form of words, pictures, a time series? How did the algorithm communicate the invention? Does it talk? The patent applications and press releases are unclear on these points. Patent offices and patent laws do not require human inventors to explain how they arrived at an invention. It is therefore unclear whether the patent offices will want to see evidence of how the algorithm actually invents.
Convinced? The team behind the “inventive algorithm” have a FAQ page that describes how the AI works, that readers are encouraged to visit so that they can decide for themselves.
The legal issue of AI inventorship
If, for the sake of argument, we assume that Dr Thaler’s algorithm is capable of performing a creative inventive act, does it therefore make sense to name the algorithm as an inventor? This question was considered from the US perspective over on IPwatchdog.
| Fractals! |
The team behind the applications, who include Professor in Law at the University of Surrey, Ryan Abbott, argue that it should be permitted to name machines as inventors. The team argue that the algorithm was responsible for the inventive concept behind the patent applications, and that the algorithm would meet the criteria for inventorship if it was a natural person. The team also argue that allowing machines to be named as inventors would stimulate innovation into inventive machines. Therefore, acknowledging machines as inventors would help protect the moral rights of human inventors.
Is AI any different to other types of platform technology?
The algorithm invented by Dr Thaler is a platform technology that appears to be able to produce novel and inventive subject matter. But is the “inventive algorithm” any different to other types of platform technology that have the capacity to inventive subject matter without human input? Take, for example, Regeneron’s Velocimmune mouse. VelocImmune is a platform technology for the production of therapeutic antibodies in vivo. VelocImmune mice take advantage of the normal murine immune response to create humanised monoclonal antibodies with high affinity. Theoretically, the antibodies produced by the platform will not require any additional engineering to make them therapeutically effective.
The VelocImmune mouse therefore has the potential to “invent” new and non-obvious, therapeutically effective antibodies. Nobody is arguing that the VelocImmune platform that generates a novel and inventive therapeutic antibody should be awarded inventorship. What makes Dr Thaler’s algorithm different to platform technologies such as VelocImmune? Surely, an inventive algorithm, if it were to exist, would not be that much different from other types of platform technologies?
Moral rights of the inventor to be named
The team behind the “inventive algorithm” argue that acknowledging machines as inventors, would protect the moral rights of human inventors. Particularly, Professor Ryan Abbott argues that failing to appropriately acknowledge inventive activity by machines weakens moral justification for patent by allowing individuals to take credit for work they have not done (Professor Ryan’s publications arguing this point can be read here).
However, it is worth remembering that the “credit” that the team behind the applications are referring to here is the right to be named as inventor, not the right to the benefits of the patent. Notably, the team do not seem to have a problem with human individuals taking credit for “the work they have not done”, where that credit is in the form of the monopoly right awarded by the patent. They maintain that the owner of the IP is the owner of the machine inventor that generates the IP.
Thus, whilst Dr Thaler insists that he is prohibited from listing himself as an inventor of the applications “because he has not contributed to the conception of the instant invention”, Dr Thaler maintains that he should have a right to the algorithm’s inventions. If another party were to use the algorithm to invent another invention, Dr Thaler and the team at the University of Surrey maintain that this invention would belong to Dr Thaler. But how does Dr Thaler derive this right from the algorithm inventor? (and if Dr Thaler tried to claim priority from a US provisional naming the algorithm as inventor/applicant, how would the algorithm assign the right to claim priority to Dr Thaler?)
It appears to this Kat that Dr Thaler’s insistence that he should be the owner of the algorithm’s inventions undermines his argument that the algorithm is the inventor. By insisting that he is the owner of the algorithm’s inventions, he is accepting that he has some rights to the invention which presumably derive from the fact that he invented the algorithm. As with any platform technology, if someone invents a tool (such as a mouse model for producing antibodies) that independently comes up with novel and inventive subject matter, the inventor of that subject-matter is the inventor of the tool.
Interestingly, the UK Registered Designs Act already expressly codifies who should be considered the author of a computer generated design: “In the case of a design generated by computer in such that there is no human author, the person by whom the arrangements necessary for the creation of the design are made shall be taken to be the author” (UK Registered Designs Act, Section 2).
Final thoughts
Before the legal questions are considered, it is important to note that evidence demonstrating the capabilities of the inventive algorithm has not yet been provided. Such evidence may, of course, soon emerge. However, at the moment it is difficult to evaluate Dr Thaler’s and Professor Ryan Abbot’s claims of AI-based inventorship. The legal discussion as to whether it should be possible to designate an AI as an inventor should perhaps be postponed until this evidence is published.
Furthermore, should AI inventorship be convincingly demonstrated, the question of whether the AI should be designated as an inventor appears moot if ownership is always to be ascribed to the inventor of the algorithm. If this is the case, the AI can be treated like any other platform technology from which novel and inventive subject matter may be derived. The inventor is simply the inventor of the platform technology.
Acknowledgements: Thanks must go to Dr Laurence Aitchison for his insights from the AI academic world.
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