Can a robot be an inventor? A new patent filing aims to find out

Years after a photogenic macaque snapped a photo of itself on a wildlife photographer’s unguarded camera, and PETA filed a federal lawsuit to give the monkey the copyright for his viral selfies, the Ninth Circuit Court of Appeals ruled that animals cannot hold a copyright under current law. In fact, since the dispute started, the U.S. Copyright Office went ahead and specifically listed “a photograph taken by a monkey” as an example of an item that cannot be copyrighted.

So if monkeys and other animals can’t own copyrights, can artificial intelligence create protected intellectual property? A new patent filing in the U.K. aims to find out.

An international team led by AI activist Ryan Abbott, a law professor at the University of Surrey, has filed the first-ever patent applications for two inventions created autonomously by artificial intelligence without a human inventor.

The AI inventor, named DABUS by its creator, Stephen Thaler, was previously best known for creating surreal art, but it was designed to come up with new ideas and then assess those ideas for consequences, novelty, and salience. So far the series of neural networks that makes up DABUS has come up with two ideas that may be worth patenting. According to a press release, one patent application is for “a new type of beverage container based on fractal geometry,” which sounds pretty sweet, while the other is for a device that can help attract attention that could be useful in search and rescue operations.

While patent offices in the United Kingdom and the EU have accepted that the patent applications meet the bar of “new, inventive and industrially applicable,” the question of whether an AI can be legally granted a patent has not been considered yet. “There would be no question the AI was the only inventor if it was a natural person,” said Abbott in a statement. “In these applications, the AI has functionally fulfilled the conceptual act that forms the basis for inventorship.”

Abbott argues that without assigning patent protection to the ideas generated by artificial intelligence, the developers, researchers, engineers, and scientists behind these inventive AIs will lose their drive to innovate on systems that could eventually, say, cure Ebola or reverse climate change. Granting a patent to the AI will “reward innovative activities,” he said, “and keep the patent system focused on promoting invention by encouraging the development of inventive AI, rather than on creating obstacles.”

Abbott is not the first person to argue that computers could be inventors, but this is the first time a patent application has listed an AI as an inventor. Similar applications are also pending in the U.S. and worldwide. If an AI truly generates novel solutions to problems or hatches ingenious ideas on its own, it could theoretically meet the inventor standard laid out by the courts. That said, patents have historically been awarded to inventors who are natural persons (aka humans), even cutting out corporations in order to protect the hardworking people behind the ideas, because “people conceive, not companies,” as held in a 1990 court case.

It’s now up to the patent offices to figure out where autonomous, free-thinking AI falls on the scale of human to machine. Either way, we can all agree that “Pumpkin Trash Break” ice cream should be a protected idea.