Artificial Inventorship

Patent law is deeply committed to the concept of human inventorship. The underlying theory of patent law is that inventions, being public goods, would be undersupplied if the law did not provide incentives for humans to invent. To address this challenge, the law bestows on inventors twenty years of exclusivity to allow them to recoup their costs. Although patents involve high static and dynamic societal costs, they are deemed imperative for the supply of inventions and thus justify their steep price. But what if there was a way to reduce the social cost of innovation without harming the supply of inventions? Enter Artificial Intelligence (AI). Recent years have seen a dramatic increase in the rate of inventions produced via combinations of humans and AI. AI transforms innovation not only by lowering research costs but by actually participating in the inventive process. Yet AI requires no incentive to invent, thereby challenging the societal tradeoff envisioned by extant patent law. The rise of AI thus disrupts not only technology but also the law. In this Article, we propose that to maintain the integrity of the patent system, patents granted to inventions that incorporate AI inventorship must reflect the respective role of the human inventor. Thus, in a sharp deviation from the binary vision of our patent law as it existed for years, we propose a model of scalar patent protection that calibrates patent protection to the level of AI contribution. Our proposal offers three key advantages relative to extant law. First, it would dramatically diminish the social cost associated with patents and provide the public with greater access to inventions without limiting the supply of inventions. Second, it would boost cumulative innovation. Finally, it would diversify and level the playing field of innovation, preventing dominant players from claiming long-term exclusivity in areas of innovation in which they possess no expertise just by owning “inventing-machines.”