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AI vs. IP: Will Improving AI Technology Impact Intellectual Property?

Josh Conley \ July 21, 2017

Google’s DeepMind engineers recently published a paper which discusses the creation of a new artificial intelligence (AI) system capable of human-like thought. This new AI represents a breakthrough in the field of artificial intelligence, as most AI systems suffer from a problem called “catastrophic forgetting.” This is a problem similar to amnesia in humans, where the system cannot retain knowledge from the tasks it has completed. This new algorithm assigns different weights to the synapses in the system, increasing or decreasing the probability that those synapses will be written over in the future. While these types of breakthroughs in AI might cause some to fear an uprising of robot overlords, this new technology raises many interesting questions about how AI will impact intellectual property.

Can an AI be an Inventor?

In the Diamond v. Chakrabarty case, the Supreme Court stated that the bounds of patent eligibility are “anything under the sun that is made by man.” While the Court doesn’t give a further definition of “man,” they almost certainly were not contemplating the patent eligibility of an invention created by a machine. With the increasing capabilities of AI, though, this scenario is a distinct possibility.

Existing intellectual property laws are not prepared to answer some of these questions. For example, can an AI be considered an inventor? What about an author? Can an AI obtain copyright protection for software that it writes? Or is this considered a work made for hire? If so, can the AI be considered an employee?

One solution would be that the rights to any intellectual property created by the AI would belong to the creator of the AI. That opens up an entirely different can of worms, though. In the process of developing an AI, one company might create the machine, while another company might develop the program, while still another company might provide the cloud computing servers that the AI is hosted on, while someone else might provide the data that is used to train the AI. So who would be considered the inventor or author here?

Can an AI be an Infringer?

Now consider the possibility that the AI could infringe a patented product or process or copyrighted software. As technology improves, there is a possibility that an AI utilizing deep learning could modify its behavior in a way that infringes on a patent or copyright. There is also the possibility that it could be taught to infringe. Can a machine be an infringer? And if it could, is there any legal recourse for that infringement?

What about the possibility of inducing or contributory infringement? Consider the scenario from before, where numerous companies are involved in the creation of the AI. Are all of the companies contributory infringers because they were involved in the creation of the infringing AI? Is the company that provided the data an inducing infringer because they provided the training data that essentially taught the AI how to infringe? Are any of these companies the direct infringer?

Could AI destroy the concept of IP entirely?

Currently, the rapid increase of AI-related technology is fueling the patent system. The top patent recipient, IBM, was granted 8,088 patents in 2016. Of those, 2,700 were related to artificial intelligence and cloud computing. Imagine what would happen, though, if AI were used to undermine the patent system instead.

With enormous computing powers and learning capabilities, AI systems could potentially come up with new ideas and solutions to problems without infringing on existing patents. For example, a company could determine that it would be more profitable to use some particular method of achieving a task, but there are already numerous patents in that field. Theoretically, an AI could be taught all of the prior art in that field and then told to find a new method to achieve the task that is different. But if everybody could do this, then there would be no incentive to obtain a patent. Creativity and innovation are central to our definition of intellectual property, but what creativity is involved when you automate that process?

AI technology is developing rapidly, and IP laws will need to be updated or reinvented to keep up. Improvements in this field are raising many interesting questions, and these questions will need answers if intellectual property is to remain relevant in our rapidly changing, technological world.{{cta(’29b47d10-02c7-4a8d-9faa-025c4397f3be’)}}

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