The Definition of Inventorship in the Era of Magnus the Robot Fighter

June 2020

The term "artificial intelligence" is a misnomer. People use it to refer to things that machines can do, but machines could not do those things unless a human programmed them to do them. "Artificial intelligence" is not something that exists in the universe separate and apart from man—it is something invented by man and executed by machines. According to IBM, the term "machine learning" refers to a form of AI that enables a system to learn from data. MIT offers an online course for professionals to learn how machine learning can be applied to industries ranging from banking to healthcare to retail to education. All artificial intelligence, and all machine learning, stems from man's ability to write code that a machine can understand.

The difference between simple programming and AI is that with machine learning, programmers write the code in a way that allows a computer to take in data, draw conclusions from it, and then apply those conclusions to produce results. Neural networks are a form of machine learning. An example of this is mobileML, available on the App Store. mobileML utilizes machine learning in the form of neural networks to automate frequent tasks, like controlling lights and sending messages. In today's world, software programs or apps that do not incorporate at least some form of AI are quickly becoming obsolete. Entrepreneurs seeking investments based on a mobile app or cloud-based software solution will have to convince potential investors that their products incorporate machine learning. It is fast becoming the industry standard.

Against this backdrop, on May 5, 2020, the U.S. Patent and Trademark Office (PTO) published a decision in a case in which the inventor was identified as "DABUS" (first name) and "invention generated by artificial intelligence" (last name). The applicant/owner was listed as Stephen L. Thaler. The Declaration (which is normally signed by the inventor) was signed by Thaler as the legal representative of DABUS.

The assignment document (in which the inventors assign their rights to a company or another natural person) was also signed by Thaler on behalf of DABUS. The patent application at issue is entitled "Devices and Methods for Attracting Enhanced Attention."

Citing the statutory definition of "inventorship," the PTO held that an inventor is an individual who invented or discovered the subject matter of the invention. According to Thaler, DABUS is a "creativity machine" that is programmed as a series of neutral networks that have been trained with general information in the field of endeavor to independently create the invention." Thaler argued that the definition of an "inventor" should not be limited to natural persons, but the PTO held that the patent statutes preclude such a broad definition—even though the statute were written long before the words AI, machine learning or neural network were part of our vernacular. Applying Thaler's definition of DABUS, it is clear that humans did the programming and enabled the training of the machine that generated the invention.

This author suggests that it is time for the U.S. Congress to revisit the definition of inventorship in light of the current state of technology. In the 1960s series of comics entitled Magnus the Robot Fighter, a human named Magnus battles rogue robots in the year 4000. In this not-so-futuristic world, humans are dependent on robots, and Magnus has been trained to fight not only rogue robots but also humans who would use robots for evil purposes. In the mere five decades since these comics were first published, the world is now dependent on the Internet, almost all inter-personal communications are via a computer, and our spaceships are now controlled by a touch-screen.

The PTO has had the first word as to computers as inventors, but it is not likely to be the last. For readers interested in learning more on this topic, the PTO has an Artificial Intelligence page on which it addresses intellectual property issues pertaining to AI-related technologies. The PTO has periodically sought comments from the public on AI-related issues.


Amicable photo of Toni

Antoinette M. Tease, P.L.L.C.