Hal the Inventor: Big Data and Its Use by Artificial Intelligence

Big data and its use by artificial intelligence is disrupting innovation and creating new legal challenges. For example, computers engaging in what IBM terms “computational creativity” are able to use big data to innovate in ways historically entitled to patent protection. This can occur under circumstances in which an artificial intelligence, rather than a person, meets the requirements to qualify as a patent inventor (a phenomenon I refers to as “computational invention”). Yet it is unclear whether a computer can legally be a patent inventor, and it is even unclear whether a computational invention is patentable. There is no law, court opinion, or government policy that directly addresses computational invention, and language in the Patent Act requiring inventors to be individuals and judicial characterizations of invention as a “mental act” may present barriers to computer inventorship. Definitively resolving these issues requires deciding whether a computer qualifies as an “inventor” under the Patent and Copyright Clause of the Constitution: “The Congress shall have the power…to promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries.” Whether computers can legally be inventors is of critical importance for the computer and technology industries and, more broadly, will affect how future innovation occurs. Computational invention is already happening, and it is only a matter of time until it is happening routinely. In fact, it may be only a matter of time until computers are responsible for the majority of innovation and potentially displacing human inventors. This chapter argues that a dynamic interpretation of the Patent and Copyright Clause permits computer inventors. This would incentivize the development of creative artificial intelligence and result in more innovation for society as a whole. However, even if computers cannot be legal inventors, it should still be possible to patent computational inventions. This is because recognition of inventive subject matter can qualify as inventive activity. Thus, individuals who subsequently “discover” computational inventions may qualify as inventors. Yet as this chapter will discuss, this approach may be inefficient, unfair, and logistically challenging.