Robot Inventors: Patently Impossible?

Abstract

![Figure][1] CREDIT: CLIPART.COM As two patent attorneys and a technical adviser at a long-established Philadelphia intellectual property law firm, we read R. D. King et al. 's Report about robotic inventors (“The automation of science,” 3 April, p. [85][2]) with interest. We wonder whether the products invented by robots will ultimately become free to the public without the possibility for patent protection. American patent law (35 U.S.C. Section 102) says that a “ person shall be entitled to a patent unless…” (emphasis added). That preamble to section 102 limits the ability to patent to a person; machines are presumably excluded. This conclusion is reinforced by section 101, which limits the invention to the discoverer: “Whoever invents…may obtain a patent….” Section 101 uses “whoever,” not “whatever.” Thus, a person using a robot that invents something may face some serious statutory impediments to patent protection. The situation is compounded by Section 102 (f), which states that one cannot obtain a patent if “he did not himself invent the subject matter sought to be patented.” Thus, Section 102 (f) prevents one from obtaining valid patent protection if he gets the idea in question—even in private—from another source. Some existing U.S. patent practice offers hope. Existing DNA/amino acid sequencing machines provide inventors with information that inventors later patent, of course. Another case in point involves high-throughput compound screening to identify promising compounds for pharmaceutical, agricultural, and other purposes. However, there are differences: Such machines are automated and not capable of cognition, and humans provide and select the inputs and analyze the data. Unlike these examples, the robots discussed in King et al. 's article seem to have an independent ability to generate and verify hypotheses, perhaps leading in patent parlance to independent “invention” by the robot, not the human. Europe may differ. Article 58 of the European Patent Convention states that a “European patent application may be filed by any natural or legal person, or any body equivalent to a legal person by virtue of the law governing it.” This language seems to provide some wiggle room for the possibility of a robot being an inventor in Europe. [1]: pending:yes [2]: /lookup/doi/10.1126/science.1165620