You may have already been exposed to the fear that robots will take over the profession. This, of course, is a fringe concern for now. It is hard to give serious thought to the technological singularity‘s making human labor and thought obsolete when aging men who have difficulty opening Word documents still move and shake so much of the industry. Even if applications to law school are down ~10% compared to last year, its a far cry from 100%. As it stands, when pro se litigants are advised to consult a competent attorney, they usually ask around for a graduate of an accredited law school rather than Siri.
But not all fields are prepared for technological innovation, and one of them is patent law.
Patent law is based on the assumption that inventors are human; it currently struggles to deal with an inventor that is a machine. Courts around the world are wrestling with this problem now as patent applications naming an AI system as the inventor have been lodged in more than 100 countries1. Several groups are conducting public consultations on AI and intellectual property (IP) law, including in the United States, United Kingdom and Europe.
If courts and governments decide that AI-made inventions cannot be patented, the implications could be huge. Funders and businesses would be less incentivized to pursue useful research using AI inventors when a return on their investment could be limited. Society could miss out on the development of worthwhile and life-saving inventions.
Rather than forcing old patent laws to accommodate new technology, we propose that national governments design bespoke IP law — AI-IP — that protects AI-generated inventions.
The problem mechanical thought poses to the traditional way that patent law works is not just some novel little quirk — it goes to the very foundation of how we think about authorship and creativity.
An ‘inventive step’ occurs when an invention is deemed ‘non-obvious’ to a ‘person skilled in the art’. This notional person has the average level of skill and general knowledge of an ordinary expert in the relevant technical field. If a patent examiner concludes that the invention would not have been obvious to this hypothetical person, the invention is a step closer to being patented.
But if AIs become more knowledgeable and skilled than all people in a field, it is unclear how a human patent examiner could assess whether an AI’s invention was obvious. An AI system built to review all information published about an area of technology before it invents would possess a much larger body of knowledge than any human could. Assessed against all knowledge, almost everything would seem obvious4. If everyone has access to such AI tools in future, then the ‘inventive step’ criterion of patentability would be close to impossible to achieve, and almost nothing would be patentable.
Laplace’s Demon has long been a problem for determinists trying to wrap their heads around apparent free will and causality, but now he’s sprung up for patent lawyers assessing apparent creativity when a thinking thing possesses massive amounts of background knowledge. What will be the new metric for differentiating a stroke of genius from a machine’s mere deduction? While I think that the cliché “it depends” is apt here — different nations will likely have different tests to determine who (or what) created inventions — it’s a problem we should provide an answer to soon. Or maybe Deep Thought has us covered? I wonder if it can patent 42.
Chris Williams became a social media manager and assistant editor for Above the Law in June 2021. Prior to joining the staff, he moonlighted as a minor Memelord™ in the Facebook group Law School Memes for Edgy T14s. He endured Missouri long enough to graduate from Washington University in St. Louis School of Law. He is a former boatbuilder who cannot swim, a published author on critical race theory, philosophy, and humor, and has a love for cycling that occasionally annoys his peers. You can reach him by email at email@example.com and by tweet at @WritesForRent.