Brainchild or Botchild? Deciphering AI Ownership Rights

The rapid popularization and use of artificial intelligence (AI) has revolutionized countless industries, pushing the boundaries of what machines can achieve.[1] Among the various fields impacted, intellectual property (IP) law faces emerging challenges in determining the ownership of rights to inventions produced by AI.[2] As AI systems increasingly create novel works and innovations, the legal landscape must adapt to address questions of authorship, ownership, and the scope of protection afforded to these AI-generated creations.[3]

The Legal Framework for Inventions and Copyrights

Traditionally, IP laws are designed to protect the rights of human creators.[4] The fundamental principle underlying these laws is the recognition of human ingenuity and creativity.[5] Unlike human creators, AI systems do not possess consciousness or legal personality, which challenges conventional IP frameworks.[6] Consequently, the question arises: who owns the rights to an invention or work created entirely or partially by an AI system?[7]

Current Legal Approaches to AI-Generated Inventions

Several jurisdictions have begun to grapple with this issue, each adopting distinct approaches.[8] In the United States, the Patent and Trademark Office (USPTO) has maintained that patents can only be granted to human inventors.[9] In fact, the USPTO is changing its audit procedures of maintenance filings in its ongoing battle against digitally generated products, including generative AI.[10] This stance was affirmed in the case of Thaler v. Hirshfeld, where Dr. Stephen Thaler sought patents for inventions created by his AI system, DABUS (Device for the Autonomous Bootstrapping of Unified Sentience).[11] The USPTO rejected the applications, stating that current patent laws require a human inventor.[12]

The Thaler case is a pivotal example of the legal challenges surrounding AI-generated inventions.[13]  In 2019, Dr. Thaler filed patent applications in multiple jurisdictions, including the United States, the United Kingdom, and Europe, naming DABUS as the inventor.[14] The applications were rejected in all of these jurisdictions, sparking significant debate about the role of AI in the inventive process and the need for potential legal reforms.[15] The U.S. Court of Appeals for the Federal Circuit held that “the Patent Act requires that inventors must be natural persons; that is, human beings.”[16]

Similarly, copyright law in the United States requires human authorship.[17] The U.S. Copyright Office's Compendium of U.S. Copyright Office Practices explicitly states that works “produced by a machine or mere mechanical process that operates randomly or automatically without any creative input or intervention from a human author” are not eligible for copyright protection.[18]

Conclusion

One proposed solution is to establish a new category of IP rights specifically for AI-generated works.[19] This approach could involve granting rights to the entity or individual responsible for the AI system, such as the developer, user, or owner.[20] Alternatively, companies could implement a collective rights management system, where the economic benefits of AI-generated inventions are distributed among stakeholders.[21] The issue of ownership and rights to AI-generated inventions remains a complex and evolving area of IP.[22] While current legal frameworks predominantly favor human inventors and authors, the rapid advancement of AI technologies may call for a reassessment of these traditional concepts.[23] As courts, legislators, and policymakers continue to grapple with this challenge, it is crucial to strike a balance that promotes innovation while preserving the foundational principles of IP law.[24] Future developments in case law and legislative reforms will play a critical role in shaping the legal landscape for AI-generated inventions, ensuring that the law evolves in tandem with technological advancements.[25]

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[1] See Ron Karjian, The history of artificial intelligence: Complete AI timeline, TechTarget (Sept. 24, 2024), https://www.techtarget.com/searchenterpriseai/tip/The-history-of-artificial-intelligence-Complete-AI-timeline.

[2] See Gil Appel, Juliana Neelbauer & David A. Schweidel, Generative AI Has an Intellectual Property Problem, Harvard Business Review (Apr. 7, 2023), https://hbr.org/2023/04/generative-ai-has-an-intellectual-property-problem.

[3] See id.

[4] See Intellectual Property Enforcement, U.S. Department of State (last visited Jan. 10, 2024), https://www.state.gov/intellectual-property-enforcement/#:~:text=Intellectual%20Property%20(IP)%20Defined&text=The%20three%20main%20areas%20of,Trademarks%2C%20Patents%2C%20and%20Copyrights.

[5] See id.

[6] See Ryan Udell, Scott Marty & Harry Levin, Takeaways From 2024's Emerging IP Licensing Trends, Law360 (Jan. 6, 2025), https://www.law360.com/articles/2277457/takeaways-from-2024-s-emerging-ip-licensing-trends.

[7] See Edward Fan, Teresa Reguly, & Yolande Dufresne, Does AI have patent and copyright ownership?, Torys (last visited Feb. 18, 2025), https://www.torys.com/en/our-latest-thinking/resources/forging-your-ai-path/does-ai-have-patent-and-copyright-ownership#:~:text=Thus%2C%20solely%20AI%2Dcreated%20inventions,be%20listed%20as%20an%20inventor.

[8] See Jennifer Maisel & Leo Loughlin, Reviewing 2024's AI Patent And Copyright Developments, Law360 (Jan. 9, 2025), https://www.law360.com/articles/2281493/reviewing-2024-s-ai-patent-and-copyright-developments.

[9] See id.

[10] See id.

[11] Thaler v. Vidal, 43 F.4th 1207, 1209 (Fed. Cir. 2022).

[12] See id. at 1212.

[13] See Thaler, 43 F.4th at 1209.

[14] See id.

[15] See id. at 1210.

[16] See id.

[17] See Copyright Registration Guidance: Works Containing Material Generated by Artificial Intelligence, 88 Fed. Reg. 16190, 16191 (Mar. 16, 2023), https://www.federalregister.gov/documents/2023/03/16/2023-05321/copyright-registration-guidance-works-containing-material-generated-by-artificial-intelligence.

[18] See id.

[19] See AI & Intellectual Property: Who Owns the Innovation?, ADLI (Apr. 23, 2024), https://www.linkedin.com/pulse/ai-intellectual-property-who-owns-innovation-adlilaw-l1slf/.

[20] See id.

[21] See CISAC Director General delivers the Sir Hugh Laddie Lecture on AI and the collective management of rights, CISAC (June 25, 2024), https://www.cisac.org/Newsroom/articles/cisac-director-general-delivers-sir-hugh-laddie-lecture-ai-and-collective.

[22] See Udell, Marty & Levin, supra note 6 (highlighting how the changing AI landscape, while producing unique IP challenges, has revolutionized many industries).

[23] See Maisel & Loughlin, supra note 8 (describing Copyright office and USPTO efforts to maintain human authorship requirements).

[24] See id.

[25] See id.