Inventorship for Patents When Inventor is Not Human
I’ve been catching up on my magazine and journal reading and recently finished the February 2005 issue of MIT’s Technology Review, which has a fascinating article by Sam Williams entitled “Unnatural Selection”.
The article explores using machines programmed with genetic algorithms to create new technology. An example given is NASA having a computer design an antennae for a trio of miniature satellites which feature both wide beam and wide bandwidth. The resulting antennae looks like something of a corkscrew, but is better than anything designed purely by humans (at least so the article implies).
What I found particularly interesting however was in
By the time Koza’s group tested the fourth or fifth versions of their program, however, something even more surprising began to happen: the program kicked out circuit designs unpublished anywhere in the patent literature. Two of these designs—a pair of controller circuits that regulate feedback—were so original that Koza and his colleagues have taken out patents on them.
As proud as he is of his software, Koza isn’t about to assign responsibility for the new designs to the program itself. The patents credit Keane, Koza, and Streeter, in that order. But there are a few new pseudophilosophical conundrums lurking here: If something is invented with no human near, is it really an invention? Who is the inventor? And if the invention actually works, does it matter if we don’t understand how?
I find this a rather troubling commentary. Section 102(f) of U.S.C. 35, the law governing patents, clearly states:
35 U.S.C. 102 Conditions for patentability; novelty and loss of right to patent.
A person shall be entitled to a patent unless —…
(f) he did not himself invent the subject matter sought to be patented, or...
If it was a machine which invented the new circuit design, then arguably, no person did. Sure, a person programmed the machine at some point, but genetic programming includes by definition evolution of the program. So, arguably Keane, Koza, and Streeter should not be able to file for a patent on something they themselves did not invent. Or should they? In the plant world people are claiming they invented (discovered?) naturally occurring compounds. Perhaps the belief is that as artificial intelligences have no status under U.S.C. 35, then it’s perfectly fine for a human to take credit for discovering the results a machine has produced.
I would love the insight of some others in the patent field on this subject.
It is good to see your comments and I have been thinking along the same lines. My fellow director, Rob Sterne, and I published an article last year in which we propose that perhaps it is time to recognize that there may not be a human inventor for inventions that arise from technologies such as genetic programming.
The article was entitled, “Automatic Inventions: When Machines Help Humans to Invent - Who is the Inventor?” This paper was presented in conjunction with The Fifth Annual Richard C. Sughrue Symposium on Intellectual Property Law and Policy at the University of Akron School of Law (http://www.skgf.com/media/news/news.55.pdf) and republished in The Computer & Internet Lawyer, Volume 21/Number 1, January 2004.
Clearly such inventions should be patentable. Concerns about fitting inventions that arose solely from genetic engineering algorithms into our current concepts of inventorship could be mooted if patent applications were allowed to be filed in the name of the owner, and without listing a human inventor.
The patent statutes and case law need to catch up with the times in that regard. The section in the proposed new patent legislation entitled “right of the first inventor to file” should really be drafted to give the right to file to the first inventor, or, to the first owner if there is no human inventor.
Mathematics had to discover “zero.” Perhaps it is time the patent law of inventorship discovers zero too. Alternatively, to protect these inventions, the case law on inventorship will have to itself evolve and recognize that contributing a high-level problem statement of a problem is a sufficient contribution to establish inventorship rights if there is no other human contribution to the conception.
What if the invention’s mechanism cannot be explained by the human inventor, but only described?
What if the complexity of the invention is beyond the ken of most, if not all, humans? would we then require that the generation algorithm be _proven_ valid? Would we require that the invention be _proven_ to work in all circumstances?
What if it is unknown whether the invention is deterministic or merely probabilistic (i.e., it works for those cases we’ve tested)?
What if the probability of the invention “working properly” cannot be assigned precisely?
It seems at some point an invention will be invented that is so complex that it is beyond the patent system’s ability to classify. Or beyond the ability of lawyers to prove that a competing invention violates an existing patent.
Possibly AIs could render a judgement, but can we then trust _them_?
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