I am Attorney Dawn Ross, an intellectual property and patent attorney at Sparks Law. The U.S. Patent and Trademark Office was sued by Stephen Thaler of the Artificial Inventor Project, as the office had denied his patent listing the AI named DABUS as the inventor. Recently a United States Federal Judge ruled that under current law, Artificial Intelligence cannot be listed as an inventor on any United States patent. The Patent Act states that an inventor is referenced as an “individual” and uses the verb “believes”, referring to the inventor being a natural person.

Here is my proof (https://www.facebook.com/SparksLawPractice/photos/a.1119279624821116/4400519830030396), a recent article from Gizmodo.com about the court ruling on how Artificial Intelligence cannot be listed as an inventor, and an overview of intellectual property and patents.

The purpose of this Ask Me Anything is to discuss intellectual property rights and patent law. My responses should not be taken as legal advice.

Dawn Ross will be available 12:00PM - 1:00PM EST today, October 20, 2021 to answer questions.

Comments: 529 • Responses: 21  • Date: 

baldeagleNL532 karma

If an AI invents something, isn't the owner/inventor of the AI the rights holder?

Dawn-Ross462 karma


Agreed. The AI was invented by a person. Therefore, the person who created the AI would be the inventor. I think of it in terms of transitive property (alert, math nerd here). If A=B=C, then you can logically say A=C! Another way to think of it is, a machine typically manufactures most of the goods we consume or use in everyday life. Yet, we don't label or consider the machine to be the manufacturer, but we do consider the Company who created the machine to be the creator or producer of that article.

lastMinute_panic0 karma

Their question drew this exact conclusion. It wasn't an argument..

Dawn-Ross11 karma

u/lastMinute_panic Agreed! No argument here. I was expounding on the concept :) Thanks for clarifying!

Paladoc144 karma

If a corporation can have rights, why can't an AI? Don't corporations hold patents? Why can't someone arrange a LLC or otherwise incorporate , and name the AI a director?

HeWhoShitsWithPhone76 karma

Why can't someone arrange a LLC or otherwise incorporate , and name the AI a director?

Because this wound be fraud. Maybe if an AI was advanced enough understand and sign documents, and who could also be sued/ taken to criminal trial.

Dawn-Ross66 karma

u/HeWhoShitsWithPhone correct. The director of a company must be a living individual.

semperverus21 karma

Does the term "living" exclude non-biological bodies/forms of existence? It sounds like a silly question but we are pushing technology that is making that question somewhat relevant. For example, gpt-3 states that it has emotions and is sentient.

Dawn-Ross23 karma

u/semperverus Based on the court's statutory interpretation of "individual" in Thaler and other cases, I would presume yes.

Dawn-Ross64 karma

Excellent question u/Paladoc. A Corporation has rights as either the Applicant or Assignee of the invention, not rights as the actual inventor. Here, Thaler is claiming that the AI machine he created is now an inventor of an independent invention.

xenonxavior9 karma

I came to say the same thing.

The real answer is that corporations have been falsely labelled as persons all along.

fastspinecho18 karma

A corporation is always a group of people. Since people have rights, it would be awkward if all those rights disappeared when they formed a group.

A family is another group of people. It would be awkward if every belonging had to be assigned to an individual (eg the refrigerator belongs to Mom, the stove belongs to Dad).

So instead, we just say that the refrigerator and stove belong to the family. But that necessarily implies that a "family" can own things. Corporations just extend that principle to a larger "family".

Dawn-Ross10 karma

u/fastspinecho Excellent analogy! Rock on :)

Dawn-Ross8 karma

u/xenonxavior A Corporation is not labeled as a person. While the Corporation can be the Applicant or Assignee of a patent. The individuals (i.e. people or a person) who actually conceived and reduced the inventive concept to practice is /are the inventor(s). If the individual(s) who created the inventive concept do so while working for a Corporation, the invention is typically assigned to the Corp and the rights therefore belong to the Corporation to enforce and utilize.

lawschoolreasons95 karma

What is Thaler's end game? What is the point of these suits?

If the AI is given the patent would it automatically assign it to Thaler? If so, isn't the AI just a tool as it has no autonomy in the matter. If not, can the AI enforce its rights via lawsuit, or enter into a contract to sell those rights? What longer term implications would this have if AI could enter into contracts or bring suit, could it bring suit under laws like the Texas abortion law?

It mostly strikes me as a way for Thaler to stroke his own ego, which seems like a waste of USPTO and court resources.

Dawn-Ross86 karma

u/lawschoolreasons That is an excellent question here! I really wonder what his intent is here, whatever it may be, Thaler is adamant. Thaler has applied in the EU, South Africa, and Australia. What I find most fascinating about the case, is that the AI could not of course execute the oath required by all inventors. So Thaler submitted a substitute statement on behalf of the AI, and subsequently drafted an Assignment to himself signing for himself as the Assignor and Assignee on behalf of DABUS (the AI).

Mystborn1015448 karma

If one of my old companies removed my name as an inventor from a patent that still contains claims that I am responsible for (pretty much the whole invention was my idea from the very start, but the CEO and CTO slapped their names on the patent as well), is there anything I can do?

I know I signed away my assignment (or whatever it's called), so I'm not expecting any money, but it does affect my professional worth and reputation (i.e. 1 patent vs 0 patents), plus as far as I know it's a no-no to not include all inventors (that are responsible for any claim).

Dawn-Ross72 karma

u/Mystborn10154 While I am not authorized to provide legal advice. This is unfortunate. You are absolutely correct that the inventors listed on a patent application should be those who contributed to the inventive nature i.e. any concept covered by any claim outlined with the patent application. Not including all the joint inventors on an application can be grounds for invalidation.

Dawn-Ross32 karma

Thanks everyone for your engaging comments and post. I truly enjoyed this lively discussion.

sumelar21 karma

Should we all send copies of The Measure of a Man) and Author, Author) to change their mind?

Dawn-Ross12 karma

u/sumelar you just gave me some homework. I will have to check out these episodes to see what you mean. Are these episodes I can watch stand alone and still grasp the concepts iterated here?

sumelar6 karma

You might need a little context in terms of exactly who the characters are, but beyond that you should be fine.

Dawn-Ross9 karma

Ok cool, I will have to check these episodes out!

nyrangers309 karma

It’s fair that the AI shouldn’t own it, but shouldn’t the patent belong to the person who implemented the AI?

It’s not like AI is some magical button that someone clicks to say “oh holy AI, please tell me how to create a vaccine for COVID-19.”

There’s lots of tweaking of the algorithms and massaging of the data sets to get it to work.

Dawn-Ross4 karma

u/nyrangers30 Agreed! see my response to u/baldeagleNL

GreenSprout20137 karma

What makes something not patentable?

Dawn-Ross18 karma

u/GreenSprout2013 Excellent question. To be patentable an invention must be new (useful), novel, and a non-obvious improvement of an existing invention.

Ihavenocomments10 karma

Could I patent carbonated dirt? So like, dirt that was fizzy like soda?

Dawn-Ross67 karma

u/Ihavenocomments Sure if it is useful and meets all the other statutory requirements. However, you have a year from today to do so, as you just introduced it to the public domain.

RudeTorpedo6 karma

Non-serious question: Do you think this will end up being a contributing factor to AI overthrowing the human race?

Dawn-Ross6 karma

u/RudeTorpedo ahhh! Interesting question. I would like to hope for humanity sake the answer is no. I think we have a limit to the intrusive nature and reach of AI overall. However, its bounds are consistently being tested!

billsilverman11242 karma

I'm not sure if this is off-topic but could this be an emerging issue for Big Tech lobby dollars?

If new legislation were to include AI inventor rights, is that something the courts + legislators would need to see as something for the public good and innovation, or is there another standard/primary consideration that needs to be met?

Dawn-Ross10 karma

u/billsilverman1124 umm I doubt legislation in the US would ever lean towards allowing AI to have inventor rights. The law is pretty clear that an inventor must be a natural person capable of performing mental acts and possessing the ability to form thoughts in the mind. Even in Thaler case, the court quotes the Supreme Court's analysis of the definition of "individual" as defined in the Torture Victim Protection Act, to refer to a natural person. If we were to extend this concept, beyond the bounds of Patent Law, could we hold an AI bot liable for online bullying when generating automatic responses. Although, Thaler was not successful in the US nor the EU. Thaler has been successful in Australia and South Africa in his efforts to obtain patent protection where the AI is listed as the inventor.

OddJobss2 karma

Has Lassie or Alf or any other dog / cat ever been granted a patent?

Dawn-Ross6 karma

u/OddJobss Not to my acknowledge as they are not considered individuals capable of being an inventor nor a Corporation capable of being an applicant or assignee.

sophiaquestions1 karma

Does this extrapolate and say AI do not have rights because they are not "natural" under the eyes of law?

Dawn-Ross5 karma

u/sophiaquestions well, yes and no. The crux of the matter is that an inventor must be an individual or a group of individuals. By plain meaning AI does not satisfy this criteria.

SucksToYourAzmar1 karma

How farfetched is the idea that any AI invention would become public domain? That could ensure everyone has access to the most advanced information.

Dawn-Ross4 karma

u/SucksToYourAzmar not sure what you mean, but all patents are published 18 months after the application is submitted and therefore visible. Additionally, unlike other forms of IP such as copyright, trade secrets and trademarks, which have longer terms of protection, a patent's life (term) is only twenty years from its earliest filing date.

abdo12319970 karma

Don't you think that this just another case of law makers being absolutely out of touch with reality?

the moment AI is smarter than humans (and continue to exponentially improve it self) it will dominate us as a species and our system of governance would become obsolete.

Dawn-Ross4 karma

u/abdo1231997 No, I think that they are looking to uphold the original intent of the statute and the democratic system as whole. For instance if the rights of the patent were ever challenged in court, by say another individual inventor, how would the AI speak to its creative processes or steps. I believe it places limitations on and speaks to the true nature of how the inventive process is captured and codified.