AI Patents and the Self-Assembling Machine

By Dan L. Burk. Full Text.

Legal scholarship has begun to consider the implications of algorithmic pattern recognition systems, colloquially dubbed “artificial intelligence” or “AI,” for intellectual property law. This emerging literature includes several analyses that breathlessly proclaim the imminent overthrow of intellectual property systems as we now know them.  Indeed, some commentators have prophesied the demise of patentable innovation under the influence of AI research and development tools.

Although AI systems pose fundamental challenges to many areas of law and legal institutions, careful consideration suggests that intellectual property generally, and the patent system particularly, encompasses sufficient flexibilities to address AI innovation.   In many cases, previous accommodation of biotechnology within the patent system points the way to similar accommodation of AI tools.  However, the incorporation of AI innovation into patents reveals a significant gap in patent doctrine regarding causation, which deserves resolution quite apart from the furor over the intersection of AI and patent doctrine.