Can Artificial Intelligence invent?

Generative artificial intelligence, the technology engine powering the popular ChatGPT chatbot, seems to have a limitless bag of tricks. It can produce on command everything from recipes and vacation plans to computer code and molecules for new drugs.

But can AI invent?

Legal scholars, patent authorities and even Congress have been pondering that question. The people who answer “yes” — a small but growing number — are fighting a decidedly uphill battle in challenging the deep-seated belief that only a human can invent.

Invention evokes images of giants such as Thomas Edison and eureka moments — “the flash of creative genius,” as Supreme Court Justice William Douglas once put it.

But this is far more than a philosophical debate about human versus machine intelligence. The role, and legal status, of AI in invention also have implications for the future path of innovation and global competitiveness, experts say.

The US Patent and Trademark Office has hosted two public meetings this year billed as AI Inventorship Listening Sessions.

Last month, the Senate held a hearing on AI and patents. The witnesses included representatives of big technology and pharmaceutical companies. Next to them at the witness table was Dr Ryan Abbott, a professor at the University of Surrey School of Law in England, who founded the Artificial Inventor Project, a group of intellectual property lawyers and an AI scientist.

The project has filed pro bono test cases in the United States and more than a dozen other countries seeking legal protection for AI-generated inventions.

“This is about getting the incentives right for a new technological era,” said Abbott, who is also a physician and teaches at the David Geffen School of Medicine at UCLA.

Rapidly advancing AI, Abbott contends, is very different from a traditional tool used in inventions — say, a pencil or a microscope. Generative AI is also a new breed of computer programme. It is not confined to doing things it is specifically programmed to do, he said, but produces unscripted results, as if creatively “stepping into the shoes of a person.”

A central goal of Abbott’s project is to provoke and promote discussion about AI and invention. Without patent protection, he said, AI innovations will be hidden in the murky realm of trade secrets rather than disclosed in a public filing, slowing progress in the field.

The Artificial Inventor Project, said Mark Lemley, a professor at Stanford Law School, “has made us confront this hard problem and exposed the cracks in the system.”

But patent arbiters generally agree on one thing: An inventor has to be human, at least under current standards.

The project has experienced mixed results so far with patent authorities around the world. South Africa granted it a patent for a heat-diffusing drink container that was generated by AI, and most countries, including China, have not yet made a determination. In the United States, Australia and Taiwan, its claims have been turned down.

After the US patent office rejected the project’s patent application — a decision upheld in a federal appeals court — Lawrence Lessig, a professor at the Harvard Law School, joined a brief filed this year with the Supreme Court.

In support of the project’s patent claim, Lessig and his co-authors wrote that the federal appeals court’s ruling “deprives an entire class of important and potentially lifesaving patentable inventions of any protections” and “jeopardizes billions in current and future investments” by undermining the incentive that patent protection would provide.

The Supreme Court declined to hear the case.

Many patents list several inventors, and company employees are frequently named while the patent’s owner is their employer. That suggests a middle ground for AI systems as a co-inventor, credited and fully disclosed — a partner rather than a solo creator.

“That may end up being where we land, but that’s a pretty big line to cross,” said Sen. Chris Coons, D-Del., chair of the Judiciary subcommittee on intellectual property.

If granting AI inventor status is a stretch today, stronger intellectual property protection for the fast-evolving technology is not.

This article originally appeared in The New York Times.