Artificial Intelligence and Innovation: The End of Patent Law As We Know It

Citation: Dornis, Tim W., Artificial Intelligence and Innovation: The End of Patent Law As We Know It (August 5, 2020). Yale Journal of Law & Technology, vol. XXIII, pp. 97 (2020), Available at SSRN: https://ssrn.com/abstract=3668137 or http://dx.doi.org/10.2139/ssrn.3668137

With the advent of artificial intelligence (AI), the end of patent law is near. Though it may not happen today or tomorrow, the system’s decline is underway. Groundbreaking innovations in AI technology have made inventions “made by AI” a reality. Today, AI is able to “invent” not only new materials and machines but also manufacturing processes, pharmaceutical drugs, and household products. Soon, our life will be replete with artificial artifacts. In a sense, humans no longer stand at the center of the creative universe — we are no longer the masters of innovation.

Despite this upheaval on the horizon, the consequences for legal doctrine remain widely unexplored. The most fundamental disruption we are about to witness is the emergence of scenarios where the inventive input is made by AI — and where no human “fire of genius” is involved. The problem here is that patent doctrine is still founded on the idea that only human beings can be inventors. Accordingly, such “inventions without an inventor” will fail before patent offices and courts. It does not take much imagination to see that with the increase in artificial inventiveness, the raison d’être of strict anthropocentrism will dwindle away. Indeed, the emergence of autonomously acting “artificial inventors” dissolves the law’s very foundations — its doctrine, policies, and practice. Unless this vacuum is filled with a new architecture, a system meltdown is inevitable. We desperately need a patent update for the era of artificial inventions.

This paper analyzes the status quo of artificial innovation — i.e., inventions “made by AI” — and its regulation (or, rather, non-regulation) in the United States and explores relevant doctrinal debate and economic foundations. On this basis, I offer suggestions how to re-conceptualize the law and how to re-calibrate legal doctrine and practice in order to keep the patent system operative.