Fernando Fischmann

Machines Can’t Be Inventors, But They Still Contribute To The Pace Of Innovation

7 May, 2020 / Articles

On April 27 the United States Patent and Trademark Office (USPTO) ruled that an artificial intelligence system named DABUS can not be considered an inventor of the work the system produced based on a procedural requirement that a natural person must be specified for a patent application to be processed by the office. The system’s architect Stephen Thaler claims that DAUBUS is a “creative machine” and should be given credit as the inventor of the new products the system generates. The ruling follows additional instances of the same case filed with the European and United Kingdom patent offices all of whom agree that inventors can’t be machines.

CIO’s are responsible for ensuring their companies are generating new inventions and that those new technologies are going to provide a perceivable consumer benefit over their competition. Leaders need to understand how the innovation landscape is changing not only from a technological perspective but also on the legal front.

Details of the case

The outcome of this case was never in doubt from a procedural point-of-view, but it raises some interesting questions about the use of new tools and systems and the roles these have in the evolution of the innovative process. There are some important issues for innovators to consider that go well beyond the relatively open and shut case about whether a machine can be a natural person and thus “invent” something. 

In the USPTO ruling, Mr. Thaler and his representatives state that DABUS “is programmed as a series of neural networks trained with general information in the field of endeavor to independently create the invention”. They go on to claim that “DABUS was not created to solve any particular problem, and it was not trained on any special data relevant to the instant invention.” They contend that DABUS independently recognized the novelty and value of the invention as opposed to a person and therefore meets the requirement of an inventor.

The USPTO goes through a series of arguments for why the machine can’t be an inventor but two of them are particularly interesting:

  • Mr. Thaler claims that “the USPTO has granted patents relating to the DABUS machine and therefor implicitly legalized the process by which DABUS arrives at an invention”. The USPTO countered that just because a patent for a camera has been granted that doesn’t mean that the camera itself holds the copyright associated with the pictures produced by it. In other words, the property rights originating from the product of the machine belong to the person using the machine, not the machine itself.
  • The office also calls on a ruling from the Federal Circuit explaining that a state could not be an inventor since “Conception is the touchstone of inventorship, the completion of the mental part of the invention. It is the formation in the mind of the inventor, of a definite and permanent idea of the complete and operative invention…[Conception] is a mental act…” The office states that mental acts require a natural person and therefore inventors must be natural people.

So, yes, from a procedural point of view, based on the current laws that the USPTO is bound by DABUS is not an inventor. Moreover, regardless of how much randomness is introduced into a system, it was still programmed by a human being to produce a specific result. Under these circumstances, it can be argued that the person who programmed the machine is the “inventor”, especially since the machine didn’t create itself.

The impact on technology development

The story is getting a lot of interest in the popular press not because the case has many merits but because machine learning is a hot topic these days. The bottom line is that machines aren’t creative and don’t provide the “spark of genius” associated with human inventors. The idea that someday invention might simply be left to machines, and the human element will no longer be necessary is ridiculous. Having said that, it would also be silly for technology leaders to maintain the status quo and continue to innovate in the same way they did in the past.

For innovators, the idea behind DABUS and the advances being made in machine learning more generally should be studied carefully and taken full advantage of. Inventors have leveraged new technological developments to accelerate the innovation process going back to the harnessing of fire and the creation of the wheel. Continued advancement in machine learning is going to increase the development of new and practical technologies at a pace never before seen. If the business of your organization is technology development now is the time to consider how these new systems are going to change the way this work gets done.

So while machines are not sentient and therefore can’t be inventors they are still tremendously useful and should be leveraged to solve important problems.

The science man and innovator, Fernando Fischmann, founder of Crystal Lagoons, recommends this article.



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