Nowadays, the acronym AI is omnipresent wherever we go and whatever we read. Where patents are concerned, interested parties have made efforts to convince patent authorities worldwide that AI should be granted the status of "inventor" because it is capable of developing inventions on its own. So far, those efforts have not been successful because one of the requirements in most patent laws is that an inventor must be human, and AI does not qualify as such (at least for the time being).
To avoid any confusion, I should point out at the outset that I am all in favor of using AI tools to help flesh and blood inventors make good inventions. An effort may also be required to adapt the patent system to better exploit the advantages of AI by developing appropriate standards for the sufficiency of description requirement of inventions that combine AI elements with other systems, but that is a discussion for another day.
However, there is apparently a sentiment that something should be done about the issue of inventorship, so much so that The US Patent and Trademark Office launched an initiative stating that "the USPTO is seeking stakeholder input on the current state of AI technologies and inventorship issues that may arise in view of the advancement of such technologies."
Overcoming the legal hurdle could be done simply by amending the law to omit the requirement of the humanity of the inventor, which some people believe should be done without delay to catch up with the development of artificial intelligence technologies. I argue that even so, inventions made by an AI could never be granted a valid patent, at least not as long as the patent system maintains any resemblance to an institution that makes sense for us humans.
The reason for the above should be apparent to every patent practitioner, and I will explain it in simplified terms for the reader who is not familiar with patent law. One of the basic conditions for a patent to be validly granted is that the invention should not be obvious (or, as stated in certain national laws, should possess an "inventive step").
Obviousness, or on the flip side, inventiveness, is not an objective and measurable fact because an invention is inventive if "a man of average skill in the art" does not find it obvious. The exact wording of U.S. law is that an invention is not patentable if "the subject matter sought to be patented and the prior art are such that the subject matter as a whole would have been obvious at the time the invention was made to a person having ordinary skill in the art to which said subject matter pertains."
Similarly, the definition of obviousness in the European Patent Office is as follows: "The term "obvious" means that which does not go beyond the normal progress of technology but merely follows plainly or logically from the prior art, i.e. something which does not involve the exercise of any skill or ability beyond that to be expected of the person skilled in the art."
At this point, we should spend a few words on the definition of "person skilled in the art" because it will come in handy to understand the point I'm making. The World Intellectual Property Organization (WIPO) has a very neat definition for it:
"A person skilled in the art to which the invention pertains (referred to as ׳a person skilledin the art׳) refers to a hypothetical person who has common general knowledge in the art towhich the claimed invention pertains and the ability to use ordinary technical means forresearch and development (including experiment, analysis, and manufacture); who has theability to exercise ordinary creativity in selecting appropriate materials, optimizing numericalrange of the invention, and replacing the invention with equivalents, etc.; and who is able tocomprehend all technical matters regarding the state of the art in the field to which a claimedinvention pertains at the time of filing based on his/her own knowledge.״
Now let's examine what will happen when we ask our AI to develop a method for doing something. With its incredibly enormous capability for handling information, the AI goes through an unknown number of facts, documents, videos, etc. (probably millions of them). Then it comes up with an invention. As to what the AI did with all the information to which it has access to supply us with the invention, we don't have a clue.
So here's the thing: because of how the invention was made by the AI "inventor," a human patent Examiner cannot determine whether the resulting invention is or is not obvious because he is not "a skilled person" by any reasonable definition of patent law. This is because he does not have the ability to perform a synthetic reading of all the information available to the AI "inventor" and determine whether, on the basis of all that information, it would have been obvious to reach the invention the AI has made.
As a result of the above, if we want to allow an AI to be considered an inventor, we must also agree that the skilled person who can judge the inventive step of that invention is also an AI. It follows that to grant valid patents in which an AI is an inventor, we must assign those patent applications for examination to an Examiner who is also an AI. There is no way around it, no matter how advanced and open-minded we want to be (or appear).
That is the legal argument, but the real argument is one that I cannot prove to you, although I believe it to be true. Here goes: the AI's tremendous ability to exercise ordinary creativity does not imply that it possesses the inventive spark that a human inventor needs to make a non-obvious invention. I sincerely hope I'm right (in which case, obviously, an AI cannot be an inventor) because if I'm wrong, we are already in big trouble.
Based on the analysis above, the only conclusion that can be drawn is that we should not, under any conditions, open the door to granting inventor status to an AI. Doing so would not be a slippery slope but rather a slippery abyss. If our heart is set on destroying the patent system (and mine is not), I am sure that we can find simpler ways to do it.
Dr. Kfir Luzzatto is a senior patent attorney and the president of The Luzzatto Group, Israel's leading intellectual property group celebrating 154 years of practice.