The query of where AI sits within the legal personhood stack isn’t so simple as it could seem (i.e. “nowhere”) — however the U.S. Patent and Trademark Office today declared that, as with other mental property, only an individual can receive its official protections.
The news arrived via “guidance,” which is to say official policy but not ironclad rule, set to be entered into the federal register soon. The guidance document (PDF) specifies that for clear legal reasons, in addition to the notion that, fundamentally, “patents function to incentivize and reward human ingenuity,” only “natural humans” might be awarded patents.
It just isn’t necessarily obvious whenever you consider how, for instance, corporations are considered people for some legal purposes, but not others. Not being residents, they can’t vote, but being legal individuals, their speech is protected by the primary amendment.
There was a legal query as as to if, when a patent is evaluated for awarding to an “individual,” whether that individual have to be a human, or whether an AI model might be a person. Precedent made it clear (the guidance summarizes) that individual means human unless specifically stated otherwise. Nevertheless it was still an open query whether or the way to cite or award an AI-assisted invention application.
For example, if an individual designed an AI model, and that AI model independently designed the form and mechanism of a patentable device, is that AI a “joint inventor” or “coinventor”? Or, perhaps, does the dearth of a human inventor on this case preclude that device from being patented in any respect?
The USPTO guidance makes it clear that while AI-assisted inventions are usually not “categorically unpatentable,” AI systems themselves are usually not individuals and subsequently can’t be inventors, legally speaking. Subsequently, it follows that no less than one human have to be named because the inventor of any given claim. (There are literally some interesting parallels to the infamous “monkey selfie” case — where the monkey obviously taking the photo can’t be awarded copyright, because copyrights have to be owned by legal individuals, and monkeys, though they’re many things, are usually not that.)
They have to, nonetheless, show that they “significantly contributed” to the invention, and this just isn’t necessarily straightforward. The document’s navigation of how that is defined actually makes for quite interesting reading:
Merely recognizing an issue or having a general goal or research plan to pursue doesn’t rise to the extent of conception. A natural one that only presents an issue to an AI system might not be a correct inventor or joint inventor of an invention identified from the output of the AI system. Nevertheless, a major contribution could possibly be shown by the best way the person constructs the prompt in view of a selected problem to elicit a specific solution from the AI system.
…A natural one that merely recognizes and appreciates the output of an AI system as an invention, particularly when the properties and utility of the output are apparent to those of odd skill, just isn’t necessarily an inventor. Nevertheless, a one that takes the output of an AI system and makes a major contribution to the output to create an invention could also be a correct inventor.
Maintaining “mental domination” over an AI system doesn’t, by itself, make an individual an inventor of any inventions created through using the AI system.59 Subsequently, an individual simply owning or overseeing an AI system that’s utilized in the creation of an invention, without providing a major contribution to the conception of the invention, doesn’t make that person an inventor.
In other words, there’s a kind of reasonability standard at play here that anyone applying for a patent would already pay attention to, but which within the context of AI doesn’t have a number of precedent to check with. It’s because of this that the guidance exists; nobody needs to fret now whether, because someone “maintains mental domination” over an AI, all its output counts as inventions of their very own.
The USPTO is careful to state that it just isn’t in any way attempting to define or limit what AI does or is, or how people should use it. It’s simply an application of existing statute and precedent to a brand new technology. If tomorrow Congress passed a law saying AI counts as a human for IP purposes, the USPTO would hit “undo” on this whole thing and work out latest guidance for awarding AIs patents. But until then, AI continues to be just a bit of software and humans are those whose work is meant to be rewarded and guarded.
