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Can AI Machines Invent?
The Answer Is No — But That Might Be Changing
By Mary Bonzagni
The term artificial intelligence (AI) is used to describe a machine’s ability to ‘think’ or carry out tasks that were once said
to require human intelligence. Tasks such as learning, logic, reasoning, perception, and,
In a similar vein, the relevant patent laws of the European Union and the United Kingdom are also said to require a human inventor.
But has the tide begun to turn? Perhaps. The South African Patent Office and an Aus-
to be the person or people who developed the machine that simulates human-intelligence processes (i.e., the developers who made the machine that supplies analysis, triggers events based on findings, parses data contextually to provide the requested information, etc.). That same person(s) or their employer(s) would own the invention and related patent.
But are U.S. patents for AI inventions that list the wrong inventors valid and enforceable? The claim of patent inventorship is of fundamental importance to the validity of a U.S. patent. In fact, failure to name an inventor or naming an incorrect inventor can invalidate a patent.
So, as AI becomes more and more a signifi- cant part of U.S. companies’ research and devel- opment efforts, these are questions that need
to be asked and answered. These companies,
as well as individuals, need clarification, which likely will first require a reform of the U.S. patent laws. It appears to be up to the judicial system or, more likely, legislators to provide us with the nec- essary clarification and/or reform.
We are now at a crossroads, and staying the course is not the answer. Patents motivate people who develop, own, and use AI — uncertainty does not. Allowing patents on AI-generated inventions will promote the development of inventive AI, which will ultimately benefit society with more innovation. u
Mary Bonzagni is a patent attorney and co-chair of Bulkley Richardson’s Intellectual Property and Technology practice group; (413) 272-6200.
 “We are now at a crossroads, and stay- ing the course is not the answer. Patents motivate people who develop, own, and use AI — uncertainty does not.”
tralian federal judge recently moved to clear the path for such inven- tions. The South African Patent Office now holds the noteworthy distinc- tion of being the first pat- ent office in the world to grant a patent listing to an inventor that is not a human being. The pat-
    yes, creativity are now being performed by machines used in every industry.
In fact, AI now forms a part of our everyday lives, from AI-powered search engines, spell checkers, and spam filters to self-driving cars to music-streaming services that use AI to assess your listening habits — with each advance mak- ing our lives easier for years to come.
In fact, AI looks like a revolutionary force that drives innovation — but can AI invent?
At least for now, the U.S. Patent and Trade- mark Office (USPTO) has provided us with an answer to this question — a categorical ‘no.’ The USPTO has held that the statutory language of the U.S. Code clearly defines ‘inventor’ and ‘joint inventor’ as natural persons. Further, the USPTO points out that the purpose of U.S. patent laws is to encourage invention by providing inventors with a limited term of exclusionary rights. The prospect of holding a patent would not motivate an AI — at least not yet.
ent relates to a “food container based on fractal geometry,” and the sole inventor is an AI system called DABUS.
Within two days of this patent grant, Judge Jonathan Beach of Melbourne ruled that there was no reason why Stephen Thaler, the research- er who developed DABUS, could not protect inventions that list the machine as their sole inventor.
But will the U.S. and other countries around the world follow suit, or will they again turn down the idea of non-human inventors? For now, the answer to this question is unclear.
During this period of uncertainty, how does one go about protecting AI-generated inventions in the U.S. using patents, who should be listed as an inventor on U.S. patent applications for such inventions, and who owns these inventions and related patents? For now, the answer to these questions is also unclear.
The most likely inventor candidate(s) appears
  Lawyers
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ibility is a viable option,” Quick said. “We have always offered attorneys some degree of flexibility and have worked with them to find an agreeable working model; until the pandemic, most attorneys worked traditional hours within a traditional office set- ting. But now, with the remote working more acceptable, and sometimes nec- essary, we have seen no change in pro- ductivity or efficiency doing work.”
Stratton agreed, noting that his firm, like most, had a degree of flexibility when it came to working remotely and allowed lawyers to do so; most didn’t, except when they had to (during snow- storms or when they were home sick), because they preferred to be in the office. Now that they’re used to it, and like it, more are taking advantage of the flexibility they have.
Indeed, before COVID, perhaps 10% to 15% of work was done remotely, and now the number is perhaps 25%, said Stratton, adding that this represents a new normal.
And the new ways of doing things
secured from lawyers in this market at rates far below those charged in those larger markets.
“With the increased use of remote communication and remote meetings, you can more easily tap those mar-
attract and retain young talent.
As noted, it has long been a chal-
lenge to bring young lawyers to this market unless there is a connection, said Stratton, who offered himself as an example. He and his wife are both from this area, and it was a desire to return here (especially on his wife’s part) after some time spent in Boston that even- tually brought him back to the 413.
Summing up the landscape as it has existed for some time, Stratton said the region has long faced what he called “depth of bench” challenges.
Elaborating, he said this is a “top- heavy” market when it comes to law- yers, with many of the leading players in their 60s or even their 70s. There are some rising stars coming up behind them, but not as many as the firms would like.
The reasons for this are many, said those we spoke with, but largely, it comes down to the fact that this mar- ket is not the big city — which means
Lawyers
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have produced greater efficiency, he added, a dynamic that creates the potential for more billable hours in a business that, as he said, sells time.
Meanwhile, the pandemic and the resulting changes in how lawyers inter-
“
to work more efficiently, utilize available resources, and communicate better to keep teams connected. I anticipate many changes will remain with us in a post- pandemic world.
The pandemic taught us many things, including how
   ”
act with clients present new opportuni- ties for firms in the 413 to do business with those well outside it, Stratton noted.
Before, to get such business, firms would need a physical office in Worces- ter or Boston. Now, for many types of business law, where personal interac- tion is less necessary, services could be
kets,” he said, adding that the firm is starting to market itself to such clients through professional networking.
Moving Target
Beyond where and how people work, the pandemic may have changed another important dynamic for local firms — the all-important work to
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