Download This PaperReorienting Patent Policy Towards Responsible AI Design
Forthcoming, Research Handbook on the Law of Artificial Intelligence (W. Barfield & U. Pagallo eds., 2d ed. 2025).
23 Pages Posted: 29 Apr 2024
Date Written: April 8, 2024
Abstract
The potential for disconnects between existing legal rules and processes of innovation transformed by machine intelligence, or what we now call artificial intelligence (AI), has been mulled over for decades. Patent scholars continue to debate the implications of a “thinking machine” paradigm of invention, debates that have accelerated in the wake of advances in generative AI. But although the technological, political and economic landscape surrounding artificial intelligence (AI) and its impact on innovation continues to evolve, the legal framework governing the discovery and development of new inventions has changed relatively little.
While discussions about the impact of AI on patent law are not new, the pressure for some kind of policy response has intensified. In the U.S. a national AI strategy has emerged that emphasizes the importance of incentivizing private sector AI innovation on the one hand, and the responsible and ethical governance of AI on the other. The national strategy also endeavors to expand public access to the data and computational resources needed to compete at the cutting edge of AI innovation. At the same time the public availability of generative AI tools has made the legal issues around invention and creation more salient and legal responses to questions of ownership and use more pressing.
This chapter examines the ways in which a “thinking machine” paradigm of invention, with its direct challenge to a human-centric conception of invention, has shaped the academic and policy debates over whether and how patent law should respond to advances in AI. It argues that the academic debate has been too narrowly focused on questions of patentability of machine generated inventions, and the policy debate, one heavily influenced by the largest tech companies, too narrowly focused on strengthening private incentives to invent and innovate. It concludes by suggesting a reframing of the AI patent policy debate to focus on the role of patents in encouraging responsible AI design.
Keywords: AI policy, artificial intelligence, patent law, innovation policy, machine-generated inventions, patent ownership, AI governance
Suggested Citation: Suggested Citation