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The IP in AI: Can Patents Protect AI-Generated Inventions?

 |  October 9, 2023

By: Aaron Hayward, Anna Vandervliet, Byron Turner, Bryce Robinson, Rachel Montagnon, Heather Newton, Maximilian Kuecking, Peng Lei & Alex Wang (HerbertSmithFreehills)

For centuries, patent law has rewarded those who devise new and inventive solutions technical problems. As AI systems become more sophisticated, patent offices and courts around the world are now faced with a challenge: what if the “inventor” is not human?

The patent system rewards the development of new and useful inventions with exclusive rights to exploit these inventions for a certain period of time. In return, it requires the inventor to publicly disclose their invention, so that other people can learn from it and continuously build upon the state of the art. However, this process of iterative innovation is no longer the sole domain of humans. Much as we noted in part 3 of this series that AI systems are now generating “creative” outputs, AI systems such as IBM’s Watson and Google’s DeepMind have already been deployed to solve some of the great technical, scientific, and medical challenges of our time.1

In a world where machines are playing an increasingly important role in innovation, the question has been asked how the patent system will protect AI-generated inventions. Is a system designed to foster human ingenuity and innovation sufficiently flexible to accommodate non-human inventors? Should it be..?