Hogan Lovells partner Celine Crowson.

Andrei Iancu, director of the U.S. Patent and Trademark Office, has been taking active steps to reconsider intellectual property rights with regard to artificial intelligence. Last summer the agency solicited public comments on the subject, including how to properly credit inventorship when a machine contributes to the conception of an invention. Iancu has indicated that the USPTO will issue a report later this year.

But as current U.S. law stands, machines cannot be named inventors. In a decision made public this week, the USPTO's deputy commissioner for patent examination policy formally rejected a patent application organized by The Artificial Inventor Project. The project argues that AI machines are already "conceiving" inventions without human intervention, and that clear rules are needed on whether they can be patented and who should own them.

The National Law Journal spoke with Celine Crowson, who's in charge of Hogan Lovells' intellectual property, media and technology group for the Americas, for her perspective on this decision.

NLJ: What next steps are available to the applicant here?

A. They do have the right to appeal. They could appeal to a federal court.

It's interesting, too, that the USPTO has a dedicated artificial intelligence page on its website. They've issued notices seeking public comment on IP protection as it relates to AI.

Q. Yes, the USPTO and the director himself seem interested in the subject. But I've read that he doesn't buy that machines are creating independently yet. So is there an argument that machines eventually should be considered inventors, but we're just not there yet technologically?

A. It's a really interesting point. This decision almost acknowledges that the PTO is hemmed in by the way the statute currently reads. [The statute] talks about "an individual." It talks about "whoever [invents]." But when I read this decision, it does in a couple of places maybe cry out for Congress to take a second look and think about whether additional statutory language is necessary in order to fully protect AI inventions.

Q. Is the time right to do that?

A. I think some may be tempted to say, "This decision is right. It's not that important for Congress to look at it. Artificially intelligent machines aren't really conceiving inventions. It's the developers, or the folks who are doing the modeling. So this isn't really a problem." I think, though, that we have to expect that we will get to more sophisticated artificially intelligent machines. And when we get there—maybe it's not in five years, it's in 10 years or longer—this may become more of a practical problem. And that may be the time when there's more of an impetus, maybe a push from technology developers for Congress to take a look and think about how to address the situation.

Q. The decision notes a couple of the policy issues that the applicants have raised, such as does the law, as currently interpreted, cause applicants to be less forthcoming about who the true inventor is. What would you say are the best policy arguments for or against this idea, if machines are creating?

A. One challenge is in the U.S. right now, the applications are typically filed in the name of the inventor, and then that inventor assigns it. Absent an agreement or a regular employment relationship, the inventor owns the technology. So then the problem becomes, can a machine transfer ownership rights? I mean, that sounds like a pretty difficult problem. So there will have to be a different mechanism or approach to dealing with the ownership piece as well. It's not going to be a situation where the statute is amended to say "an individual or a machine." That's not gonna do it.

Q. How will these issues be handled in the meantime?

A. Like with a lot of AI, there's going to have to be written contracts and agreements in place with respect to ownership and liability. There's going to have to be some law developed around that framework as well.

You have a designer of an AI machine. You have someone who's modeling it and testing it. And then you may have that machine be purchased by an entity, like you'd purchase a tractor. Folks are really going to be looking to make sure that the ownership and the liability issues are spelled out in those sales or contractual arrangements. And perhaps the case law will move in a direction where the ownership of the intellectual property and the invention, if that machine really does create something new, that will have to be spelled out in the contract. And when the application is filed, perhaps it's filed in the name of the entity who owns it.