You know that buzzword “AI” or “Artificial Intelligence” you’ve heard being thrown around? The one that comes with talk of robots taking over the world by the end of 2050?  Well, while many buzzwords are evanescent in nature, and even though the very being of AI relies on artificial, non-human systems or machines, there is nothing artificial about AI’s importance. This is no longer a science fiction fantasy. This is our reality, and we are entering this realm of the impossible.

While much focus has been on AI’s potential for disruption, to benefit from AI, we must harness its power and brief about its growing role, particularly its meaning for our very laws that protect innovation and creativity. Indeed, the intellectual property legal landscape is traditionally divided into (1) copyright; (2) trademark; (3) patent; and (4) trade secrets. Specifically, under the current systems of laws, human inventor is contemplated. However, upon a fantastical world becoming a reality, innovators are no longer only humans; innovators are now computers and humans who rely on AI as a tool for innovation. As a result, the proliferation of technology has created a new legal landscape with significant ramifications for the intellectual property doctrines.

Importantly, intellectual property law is founded on personhood: to protect the investments and the intellectual output of creators and inventors. Given that our inventors are now both man-made and machine-made, the underlying foundations of IP law may not be as well-founded as they once were. What is particularly challenging about AI in the IP landscape is that certain areas of AI do not fit squarely into these four specific categories. For example, a training data set used to train a machine-learning model would struggle to receive protection under copyright or patent laws. Notwithstanding that a training data set could potentially acquire protection as a trade secret, trade secret law hinges on secrecy, secrecy that would, by definition, hinder investment in AI technology and advancement in society.

While the legal question of inventorship traditionally requires a human inventor, the USPTO has greeted the high-tech galaxy with perplexed eyes. In fact, the USPTO has asked for guidance from the Patent Bar on whether it should be crediting machines as inventors and recent case law reveals mercurial results. The issue of whether AI is eligible for inventorship remains unanswered, but clearly, the law is not prepared.

The question now arises: How does the law want to credit the inventions and ideas coming from a system? If resistance is futile, inventorship may be limited to natural human beings, and firms may be less inclined to even invest in this technology, let alone decide on whether to make or buy it. Will the effects be facilitative, efficiency enhancing, and transformative, easing inventions and helping society? Or will they exceed human capacity to the extent that human input is no longer needed?

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