Artificial intelligence, inventorship and the myth of the inventing machine: Can a process be an inventor?

Abstract

ABSTRACT Institutional and academic debates have intensified regarding the recent efforts to claim inventorship of AI-related patent applications, as has notably been seen in the known cases of Thaler v Comptroller (‘DABUS’) that have been examined in various jurisdictions. The pertinent question that has emerged is whether artificial intelligence systems can independently produce patentable subject matter. What has to be looked at, first, is the preliminary question of what the claim of producing inventions ‘autonomously’ can possibly mean under a technological perspective – an essential stage in the debate that is usually bypassed in legal commentary. Once such a technological explanation has been provided, a legal question can reasonably arise as to whether an AI process, such as software, may make a contribution that rewards a patent. AI inventions are legally approached and analysed as processes and as to their relationship with their direct products. Thus, where a process (AI) ‘creates’ or ‘makes’ a product, the focus is reasonably put on if and to what extent disclosing the product can provide a contribution separate to that which has already been provided by the process that created it. It is stressed that the current push for AI-generated products bypasses this key question which is essential in assessing the invention.