Can AI be an inventor? Can a neural network be patented? Learn about AI and intellectual property today.

From one perspective, then, the answer is clear. AI is a tool, not an inventor. You might as well try to confer legal personality to a hammer.

From another point of view, advances in AI technology mean that AI can do a lot of the creative or inventive work with minimal input from humans. If a person uses AI to come up with a concept, you could argue that the person's involvement is minimal.

It's an issue that is unfolding as we speak. The direction of travel is uncertain and two cases in particular reveal some of the complexities.

Can AI be an inventor?

In December 2023, Stephen Thaler lost his bid to register AI-generated patents.

He wanted to patent two inventions that were, he said, the products of his "creativity machine". This AI, which he calls DABUS, came up with a food container and a flashing light beacon.

The UK's Intellectual Property Office (IPO) refused to register them, saying that a machine couldn't be classified as an inventor.

Thaler appealed to the Supreme Court, which ruled that "an inventor must be a natural person", at least under UK law. The Court did not, however, offer an opinion as to whether DABUS was or was not the inventor.

Thaler told the BBC, "Naturally, I feel disappointed by this decision, highlighting the ongoing clash between human and machine intelligence".

The law, however, remains unchanged. In June 2022, the government published a response to its consultation on AI and intellectual property. It concluded that there should be no change to patent laws, arguing that any such change should be international.

Neural networks can now be patented

In a separate ruling by the High Court, IPO will now allow AI inventions that use a machine learning approach to be patented. This isn't the same as patenting inventions made by AI – just those inventions which have an underlying trained artificial neural network (ANN).

The case centred on an AI system that provides media recommendations using an ANN. It is, the judge ruled, different from a computer program (which can't be patented).

This may set a precedent for other AI inventions, at least according to Ben Maling, managing associate at EIP:

"The UKIPO is bound by High Court rulings and will therefore have to apply the reasoning of this decision to other cases, which opens the door for many more UK patents in the AI field."

However, he and others suspect that UKIPO will appeal the decision.

Can an artist be ripped off by AI?

In California, a case is unfolding that pits artists against AI.

Sarah Andersen and others are suing Stability AI Ltd for "direct and vicarious copyright infringement". They allege that the company has misused their copyrighted work by using it to train its open-source AI art generator Stable Diffusion.

Meanwhile, in the UK, stock photography firm Getty Images is suing Stable Diffusion. A UK court has ruled that the suit can go to trial. Getty is alleging that, as with Andersen et al, its copyrighted material was used to train Stability AI's AI models without a license.

Getty is also suing Stability AI in the States, accusing it of "brazen infringement of [its] intellectual property on a staggering scale". It claims that Stability AI copied more than 12 million images without permission or compensation.

All of these trials are underway at the time of writing. Their outcomes could set a precedent for future tussles between artists and AI.

Conclusion

Advances in AI are giving rise to all sorts of legal questions that are as troublesome as they are fascinating. If you need support with an issue relating to AI and intellectual property, the advice of an expert commercial or corporate lawyer can be invaluable.

Are you looking for a commercial or corporate solicitor to help with an issue relating to intellectual property? Get in touch with Milners to book a free initial consultation.