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Can an AI own a patent? A new legal drama will decide

By Jeff Schulz , Creative Director

April 14, 2021 | 6 min read

As AI continues to think for itself, Jeff Schulz – creative director at VSA Partners in New York – looks at the arguments around whether it is capable of creating patentable inventions independent of humans.

Man's head dissolving into pixels

The title of Billie Eilish’s most recent hit song, Therefore I Am, is a brilliant crop of Descartes’s ’Cogito, ergo sum’ that transforms it into an immediately recognizable statement of personal independence. So it’s only slightly surprising that a simple tweak of her declaration into ’Therefore AI am’ encapsulates a machine-autonomy legal drama that’s currently playing out in the world’s intellectual property courts.

The drama is all about Dabus. Dabus is not DaBaby’s alter ego or an incognito performer who is being sued for copyright infringement. Instead, Dabus stands for ’Device for the Autonomous Bootstrapping of Unified Sentience’. In over-simplified plain English, Dabus is AI that’s hypothetically capable of creating patentable inventions independent of human involvement. And therein lies the drama.

It all started a few years ago when Dr Stephen Thaler filed patent applications with various IP offices around the world, including the US Patent and Trademark Office (USPTO). Typically, Thaler would have listed a human as the inventor on his applications. Instead, his inventor was named as “Dabus”, which was defined as “connectionist artificial intelligence”.

According to industry authority IP Watchdog: “One of the patent applications was for a food container with walls having fractal profiles (which may prevent stacked containers from sticking to each other). Another of the patent applications was for a warning light that flashed with a temporal sequence (having a particular fractal dimension) predicted to be particularly effective in grabbing attention of a person.” In other words, these inventions weren’t abstractions. They were physical objects. And they weren’t invented by an abstraction, at least according to Thaler. One of his recent court documents declared that “Dabus invented the ... inventions,” because “the machine rather than a person identified the novelty and salience ... before a natural person did.”

In general, this and other ideas from Thaler have not found receptive audiences at the USPTO or its UK or EU equivalents. Dabus has generated substantial international debate in recent years, but Thaler has not been on the winning side. It’s typically because patent law has trouble designating a machine as an inventor.

The drama’s most recent development was a teleconference hearing on April 6 with Judge Leonie Brinkema of the Eastern District of Virginia. The hearing was Thaler’s appeal of the USPTO’s rejection of his Dabus patent applications. Thaler’s court document characterizes the rejections of his patent applications as “arbitrary, capricious, an abuse of discretion, not in accordance with the law, unsupported by substantial evidence, and in excess of Defendants’ statutory authority.”

The same document from Thaler indicates that he is “prohibited from listing himself as an inventor ... because he has not contributed to the [invention’s] conception”. The document continues provocatively: “Dabus performed what is traditionally considered the mental part of the inventive act.” In other words, Dabus has the ability to think.

During the hearing, Brinkema said machines that can think are “a little bit like the mind-body problem”, which again calls to mind Descartes, whose awareness of his own cognition evidenced his very existence. In contrast, Eilish downplayed thinking in order to upgrade independence. But for Dabus, it seems that the mental component signals existence as well as independence – and the result is a non-human consciousness that can, at least in Thaler’s view, independently invent.

Brinkema has yet to issue a ruling but she did hint during the hearing that she is not convinced of Thaler’s view. The structure of US patent law may be the reason for her skepticism. During the hearing, the USPTO said that the Patent Act identifies inventors by the personal pronouns “himself and herself” and that suggesting those words could mean anything other than a human being would “strain credulity”. It’s worthwhile to note not only the prominence of gendered pronouns in yet another cultural milieu but also that the possessive “its” could be used to attribute agency to autonomous machines.

Brinkema’s hint at a negative outcome for Thaler didn’t preclude her from proclaiming the Dabus drama “a fascinating issue” and expressing that “in the future the answer might be very, very different”. It’s largely for this reason that Dabus has generated interest in the IP community.

Brand consultants and creatives should be interested, too. IP is central to consulting, so debates about AI’s impact on IP are also debates about AI’s impact on consulting. Creativity is similarly central to consulting. Given that Dabus focuses on “the mental part of the inventive act”, AI is clearly impacting creativity, too. And as AI’s power evolves, this interplay among consulting, creativity, IP and AI will only grow.

But there’s also a higher-level reason for brand professionals to give credence to the Dabus drama. The architectures, systems, templates, formats, frameworks and patterns that consultants and creatives construct in order to enable brands to grow are not unlike longstanding patent laws. They’re immensely helpful structures, but they will need to evolve. This is especially true now that machines can create things that can’t be recognized by outmoded structures that were built to meet the needs of a pre-AI world.

As AI continues to think for itself, older structures will need to be reconsidered – as well as the ways by which those structures are created and recreated. And the brands, consultants and creatives that start putting the principles and lessons of AI to work now will be all the smarter for it.

Jeff Schulz is creative director at VSA Partners, LLC, a hybrid design and brand experience firm.

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