-Martha Engel, Attorney
While on my flight back from speaking on trademarks & the alcohol industry at this year’s CiderCon, I listened to a fascinating TedTalks podcast on advancements in artificial intelligence that you can find here. Some of the examples of the progress made in robots included the concept of open-ended, non-linear “generative” thinking by advanced AI machines. As discussed in the podcast, artificial intelligence is now at a level of sophistication where, when given a problem, the robot can create what sounded like an inventive solution for new designs. This seems to be beyond just more efficiently and expeditiously completing calculations, but actually derived from robots “thinking.” And that got me thinking – who should be the author or the inventor of that new design?
Under U.S. patent law, “whoever invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent therefor” as long as the invention is novel and non-obvious. An “inventor” is defined by the statute as an “individual” with no explicit qualifier that the individual be a human. The basis for patent law – Article I, Section 8 of the Constitution – also doesn’t specifically require a human inventor.
Assuming that the robot would be the “inventor”, would the new design be assigned automatically to the owner of the robot? Maybe, as it would be similar to an employer-employee relationship under current law. But what about any claims by the manufacturer of the robot? Perhaps this issue of ownership in patentable inventions generated by these robots would need to be handled through user agreements for the robots. Or should the inventor be the human directing the robot, as a tool, to provide a solution?
Under U.S. copyright law, the copyright in a work vests initially in the “author or authors” of the work. The robot situation seems similar to “the monkey selfie” copyright infringement action. There, a federal judge dismissed the case on the basis that the statutory language did not plainly state any rights for non-humans, leaving it up to Congress and the President to decide whether a monkey or another animal had standing to sue for copyright infringement as an owner.
The law is often slow to catch up to technological advancements. How do you think the law should develop in this area?