Recent court rulings from Australia, the United States, the United Kingdom, and Europe, have held that Artificial Intelligence (AI) cannot be inventors within the current scope of the law.

Based on the legislation regarding intellectual property law, inventions and artificial intelligence have hit a ceiling. Patent legislation in its present state requires the inventor to be a human being, thus limiting inventions created by non-humans. When the law was drafted there were no machines nor AI operating in society that had the capability to create such inventions. However, as scientists and engineers evolved, so did their creations. The cases before the court concerned DABUS, an AI “creativity machine” that created a fractal drinking container to alter its shape for handling as well as a ‘neural flame’ to mimic brain activity. Both were rejected on the sole basis that they were created by AI.

This issue is that this antiquated legislation has the likelihood of stifling innovation and the evolution of AI. Dr Rita Matulionyte, an international expert in intellectual property law at Macquarie University, stated that “why would humans create very advanced AI technologies that are able to innovate if they cannot protect the outputs those machines create, nor receive any profits for them”. AI has already begun to seamlessly integrate itself with modern society, providing for medical advancements, traffic regulation, data keeping, legal information, and much more. Moreover, Australia alone has an AI roadmap to generate approximately $315B into Australia’s economy by the year 2028. As such, it is imperative that we have measures in place to promote the innovation of AI and subsequent inventions to utilise AI as a tool to better our future.

Accordingly, with such an impact, it may seem counterintuitive that the courts prevented the patenting of an AI invention. However, courts remain sceptical due to the unknown element of AI as well as the risks and pitfalls of the current system. A key issue for policymakers and legislators is the transparency of invention. Regardless of whether an AI makes an invention, it is another for it to abide by the current laws in place. Society needs to know how technology works and transparency is a critical issue that needs to be addressed before AI inventions are to be patented.

But do not lose hope for AI just yet. We have already seen progress in the space of copyright in the United States with the infamous monkey and its copyrighted photograph. If the United States Copyright Office can grant copyright to a non-human entity, we may soon see patent legislation amendment to incorporate new inventions by AI. Or better yet a revival of the entire regime. Let us know whether you think the law should recognise AI inventions?