If the hallmark of intelligence is problem solving, then it should be no surprise that artificial intelligence is being called on to solve complex problems that human intelligence alone cannot. Intellectual property laws exist to reward intelligence, creativity and problem solving; yet, as society adapts to a world immersed in artificial intelligence, the nation’s intellectual property laws have yet to do the same. The Constitution seems to only contemplate human inventors when it says, in Article I, Section 8, Clause 8, “The Congress shall have Power … To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.” The Patent Act similarly seems to limit patents to humans when it says, at 35 U.S.C. § 100(f), “The term ‘inventor’ means the individual or, if a joint invention, the individuals collectively who invented or discovered the subject matter of the invention.” In fact, as far back as 1956, the U.S. Copyright Office refused registration for a musical composition created by a computer on the basis that copyright laws only applied to human authors.

Recognizing the need to adapt, the U.S. Patent and Trademark Office (PTO) recently issued notices seeking public comments on intellectual property protection related to artificial intelligence. In August 2019, the PTO issued a Federal Register Notice, 84 Fed. Reg. 166 (Aug. 27, 2019) entitled, “Request for Comments on Patenting Artificial Intelligence Inventions.” On October 30, the PTO broadened its inquiry by issuing another Notice, 84 Fed. Reg. 210 (Oct. 30, 2019) entitled, “Request for Comments on Intellectual Property Protection for Artificial Intelligence Innovation.” Finally, on December 3, 2019, the PTO issued a third notice, extending the comment period on the earlier notices to January 10, 2020. All of the notices can be downloaded from the PTO’s web site at https://www.uspto.gov/learning-and-resources/federal-register-notices/federal-register-notices-2019.

The January 10, 2020 deadline for public comments on the issues raised in the notices is fast approaching. This is an important topic for the future of technology and intellectual property, and the government is plainly looking at these important issues with a clean slate. Vedder Price Shareholder Daniel Shulman has been actively following this issue, recently delivering a major address at a conference in Seattle attended by technology heavyweights entitled “Artificial Intelligence & Patents: What Happens When a Computer Invents Something?”