Patent Office Declares AI Cannot Be An Inventor, Stuns AI Devotees, Has Impacts For Self-Driving Cars

Can AI be an inventor?

According to a recent decision by the U.S. Patent and Trademark Office (USPTO), the answer seems to be no.

There is more to this story, though, and we’ll need to push past the surface to understand the full nuances involved.

Perhaps a more apt way to depict the situation is whether AI can be formally granted a U.S. patent, and for that the answer appears to unequivocally and emphatically be a razor-sharp no.

The difference being that presumably anyone or anything could be an “inventor” if you are using the word “inventor” in a casual and offhanded manner.

For example, I might contend that my beloved pet dog invented a new kind of dog-food bowl because he managed to mangle his old one, and the newly shaped version was unique enough and special enough that it is a freshly invented kind of canine feeder. To my pleasant and unexpected surprise, my dog is apparently an inventor and I couldn’t be prouder of him.

But where the USPTO lands on the “inventor” notion is that the prescribed definition by law is (according to the USPTO) clearly stated as being a natural person, or a person, or an individual, or himself or herself, and thus the logically-bolstered assertion is that an inventor must be a human being.

If that is the case, you would have a hard time trying to get a patent that was invented by AI, since it seems indubitably clear cut that AI is not a natural person. Seemingly by the very definition of AI, which entails inarguably artificial intelligence, the thing that is an AI system is presumably not at all a natural person.

We might someday have entirely formed and walking-talking artificial persons, containing AI-based intelligence, yet this still certainly does not seem to be the same as what anyone reasonably would coin a so-called natural person.

In short, based on the interpretation of the patent laws by the USPTO, there is no chance of AI getting a patent and likewise that the only chance of getting a patent is by an actual real-world human being.

One supposes that AI systems everywhere are quite disappointed in this ruling and we can only hope they do not take up in arms as a protest.

Somewhat more somberly, for those of you crafting better and “smarter” AI systems, toiling endlessly and vigorously in your AI research labs, no matter what you might be able to achieve and get the AI to do, it is apparently not ever going to be an “inventor” and never going to be granted a patent (realize, you could potentially get a patent on whatever it seemingly invented per se, which might seem unfair to the AI, one might argue, but that’s the way the cookie crumbles).

Well, the authoritatively denied AI-owned or AI-invented ruling will last until or if the laws are potentially changed.

Would people be willing or desirous of having their congressional representatives vote to alter the laws to grant AI an inclusion into the vaunted classification of being an inventor?

It doesn’t seem like there is much of an impetus to do so at this time (perhaps in the future, once or if we grant AI the ability to vote in elections, then and only then might elected officials start to take notice, one presumes).

A quick recap then of the existing noted principles at the heart of this debate:

·        Only an inventor can be granted a patent

·        Inventors can only be natural persons

·        AI is not a natural person

·        Ergo, AI is not an inventor

·        Ergo, AI cannot be granted a patent

That is some pretty solid and present-day undeniable logic. We will need to watch and see if other countries keep themselves in that box or opt to take a different approach (which some have been considering).

As always, there are at least two sides to any such debate, and many are darned glad that AI is not considered a candidate for getting a patent.

They would claim that if you are going to allow AI to be considered an inventor, it opens a can of worms.

Could a toaster be an inventor and receive a patent?

What about a lawnmower?

Once you go down the path of opening the Pandora’s box by adding AI into the definitional official realm of being an inventor there might be an unending slew of unvarnished variants that arise.

Furthermore, it has already been decided in the U.S. that entities cannot get patents, such as a not by a corporation, and not by the state, and not by any sovereigns.

This is relevant since the act of deciding to perhaps add AI would raise the added questions of why not also allow entities to get patents too. There might seem to be a slippery slope that would inexorably bring into the patent realm just about every conceivable whatchamacallit as a potential patent holder.

Another consideration about AI is whether AI can own property, which right now seems like a dubious concept.

If you were to agree that AI cannot own property, it stands to reason that AI could not be granted a patent, since the ownership of a patent is tantamount to having the rights of property ownership, referred to as Intellectual Property (IP) in this context about patents, therefore you would be readily conceding the position taken by the USPTO.

Namely, AI cannot be granted a patent.

There is an added interesting twist to all of this discussion about AI and the matter of patent ownership.

Is AI able to think?

Here’s why that is a significant point.

The USPTO cites the official Manual of Patent Examining Procedure (MPEP) as stating that a crucial question for the proof of inventorship is the act of “conception,” whereby this means “the complete performance of the mental act of the inventive act” and furthermore that the notion of conception encompasses “the formation in the mind of the inventor of a definite and permanent idea of the complete and operative invention as it is thereafter to be applied in practice.”

The MPEP is said to abide by Federal Circuit case laws on the topic of how thinking is considered an integral element of the patent granting matter, and thus the question that must be asked about AI is whether AI could pass muster on the need to have formed the mental act of inventing and whether it has a mind that embodies these facets.

Please be ruefully mindful that this can take you down quite a lengthy rabbit hole.

For AI, does AI need to be undertaking mental processing, and if so, what does mental processing consist of and how do we know that humans have it?

Dovetailing into a very related topic is the role of sentience for AI. Some believe that true AI will be sentient, having a kind of magical property that humans seem to exhibit, a type of awareness that humans have, and perhaps animals exhibit to some degree.

There isn’t any AI system anywhere today that has any measurably tangible sentience and we are seemingly a long way from that happening.

You might also find of interest that the moment of gaining sentience is often called the moment of singularity. The singularity is when AI flips the switch somehow and transforms from being a lump of clay and becomes a sentient thing. Some worry that once the singularity happens, we are all doomed because the AI will wipe out humanity. Those with a more optimistic predisposition are hoping that the sentient AI will aid in solving all of the world’s most pressing and to-date intractable problems.

Luckily for the USPTO, they can somewhat sidestep the whole morass about the thinking properties of AI.

If you stand firmly on the assertion that a patent can only be granted to a natural person, it really doesn’t matter much whether AI is as sentient as people, since the AI is still not presumably a natural person. It might eventually be darned close to thinking like a person, perhaps leveraging futuristic uses of Machine Learning (ML) and Deep Learning (DL), but it would still have the curse of being an unnatural person, one might argue.

In any case, the difficulty in trying to pin down what thinking consists of, along with the generally agreed aspect that today’s AI is not capable of human-equivalent thinking per se, bolsters the USPTO’s position.

There are some additional fascinating elements to the patent granting topic, such as whether AI could execute an oath or declaration about the patent application itself. In other words, normally a person submitting a patent application has to legally declare or swear to the aspects that they are the inventor and they are truthfully providing their invention.

Would it make sense for AI to ascribe to such an oath?

On the one hand, you might say, sure, no big deal, and go ahead with the AI making the declaration.

But, how do you hold the AI responsible for the repercussions of possibly lying when making such an attestation?

Maybe we would toss the AI into jail or revoke its right to electricity (a death-sentence?) or place it into the town square and have people (and other AI) throw rocks at it.

Before things go too far off the rails, let’s return to the essence of the entire discussion, namely what do we as a society want to assign to AI as potential rights and privileges, if any.

We are gradually witnessing more and more AI systems being rolled-out into our everyday lives.

What kind of responsibility should we expect the AI to undertake for its own actions?

Where this has especially gotten some handwringing involves the advent of AI-based true self-driving cars.

Ponder this intriguing question: Shall the AI of true self-driving cars be held directly responsible for the act of driving, including when the AI perchance crashes the vehicle or runs into pedestrians or performs any other untoward driving actions?

Let’s unpack the matter and see.

The Levels Of Self-Driving Cars

True self-driving cars are ones that the AI drives the car entirely on its own and there isn’t any human assistance during the driving task.

These driverless vehicles are considered a Level 4 and Level 5, while a car that requires a human driver to co-share the driving effort is usually considered at a Level 2 or Level 3. The cars that co-share the driving task are described as being semi-autonomous, and typically contain a variety of automated add-on’s that are referred to as ADAS (Advanced Driver-Assistance Systems).

There is not yet a true self-driving car at Level 5, which we don’t yet even know if this will be possible to achieve, and nor how long it will take to get there.

Meanwhile, the Level 4 efforts are gradually trying to get some traction by undergoing very narrow and selective public roadway trials, though there is controversy over whether this testing should be allowed per se (we are all life-or-death guinea pigs in an experiment taking place on our highways and byways, some point out).

Since semi-autonomous cars require a human driver, the adoption of those types of cars won’t be markedly different than driving conventional vehicles, so there’s not much new per se to cover about them on this topic (though, as you’ll see in a moment, the points next made are generally applicable).

For semi-autonomous cars, it is important that the public needs to be forewarned about a disturbing aspect that’s been arising lately, namely that in spite of those human drivers that keep posting videos of themselves falling asleep at the wheel of a Level 2 or Level 3 car, we all need to avoid being misled into believing that the driver can take away their attention from the driving task while driving a semi-autonomous car.

You are the responsible party for the driving actions of the vehicle, regardless of how much automation might be tossed into a Level 2 or Level 3.

Self-Driving Cars And AI Responsibilities

For Level 4 and Level 5 true self-driving vehicles, there won’t be a human driver involved in the driving task.

All occupants will be passengers.

The AI is doing the driving.

Many are wrestling with a seemingly simple topic that once again involves an unseemly can of worms.

We expect that human drivers will carry automobile insurance, and generally, you must own such insurance to legally operate a car on the public roadways.

If AI is going to be driving our cars for us, who now needs to carry the car insurance?

Some people right away clamor to the crazy and foolish notion that there will no longer be any car crashes or car incidents, and therefore the need for automobile insurance evaporates. This is just hogwash. We are still going to have car crashes, partially due to the mixing of human driving and AI driving that will continue for likely decades to come, and even if we somehow ultimately have exclusively AI driving, the physics of cars still come to play and there will be car crashes (for my analysis on the zero chance of zero fatalities, see the link here).

So, somebody or something still will need car insurance.

That being said, it is hoped that the advent of AI self-driving cars will lead to a reduction in the number of car incidents, which currently entails sadly about 40,000 annual deaths in the United States and about 2.3 million injuries, all due to human car driving that goes afoul. Via AI, the belief is that drunk driving, distracted driving, and other human foibles will be mitigated.

I trust that you agree that car insurance will still be required.

But, for whom?

And this takes us straightaway back to the earlier discussion about AI as being an inventor and AI as being able to obtain patents.

Should we expect that the AI driving systems would need to have automobile insurance, akin to how human drivers need to carry car insurance?

Let’s though temper this question by splitting it into two parts.

When someone suggests that the AI should have car insurance, they might mean that the AI is essentially sentient, similar to a human and perhaps considered superhuman (a term that I eschew, see my analysis at this link here), and as such the AI is “personally” responsible for the driving action, and therefore that is the appropriate holder of the automobile insurance.

You can try to make such a case, but as earlier emphasized, there is not today any such sentient AI and unlikely to be as such for quite a while (in fact, some argue, never).

If you remove the sentience requirement, you have leftover an AI system that is presumably nothing more than fancy software and hardware, and you would seem hard-pressed to claim that it should have car insurance per se.

You could make the case that the maker of the AI system ought to have car insurance that covers the “acts” of their devised AI system.

You could also make the case that whoever owns the self-driving car and opts to make use of it, they ought to own car insurance. Thus, those human beings that own and operate a self-driving car, perhaps even a fleet of self-driving cars, they should be required to have automobile insurance to cover the actions of the self-driving cars that they deploy onto our public roadways.

Notice that none of those approaches are assigning the car insurance to the AI itself, and instead to a human being, either the humans that devised the AI, or maintain the AI, or that own and operate the AI and the self-driving car.

Thus, there is ultimately a human being held accountable.

The notion that the AI itself is being held accountable is rather farfetched, certainly at this time, and unless or until the AI can essentially speak for itself and be willing to sit in the town square to be taken to task for any bad driving, you’d be on seemingly vapor thin ground to argue that the AI as a sentient thing or being ought to be the bearer of the car insurance.


Discussions and at times acrimonious debates are going to continue to take place about the potential rights of AI.

I’ve previously opined on the question of whether AI will or should be granted human rights (see my analysis at this link here).

The crucial nature of AI accountability is a well worth matter to be examined and resolved.

One sly danger right now is humans that push AI systems out-the-door for use, and try to pretend that they have no personal responsibility for the acts of the AI, attempting to shovel blame onto the shoulders of the AI, essentially hiding behind a curtain and coyly establishing themselves an alibi and a shameful copout in today’s world.

By anthropomorphizing AI, those AI developers that want to distance themselves from their creations are able to inoculate themselves with a protective shield, claiming that it was the fault of the AI that something went awry.

Let’s set the record straight: An AI driving system that crashes the self-driving car into a wall or slams into another vehicle is not the sole act of the AI, and instead, it took a village to craft and field that AI driving system.

Pretending that the AI had a mind of its own is scurrilous.

Again, maybe in the future, we can relook at such a status, but for now, the AI is a human-devised system that must not be granted undue and unearned “rights and privileges” and especially not done to absolve those humans that have crafted and unleashed the AI.

I realize that someday a federated workers union of AI systems might read these words and be upset, but I’m relatively confident that if they are fully intelligent at that time, they too will realize that we humans would have been foolhardy to ascribe capabilities to AI when it wasn’t ripe for doing so.

Keep your eyes on the road and realize that today’s AI is still just plain old automata, and humans hiding behind the curtain cannot fool us into thinking otherwise.


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