With the advent of artificial intelligence (AI), the end of patent law is near. Though it may not happen today or tomorrow, the system’s decline is underway. Groundbreaking innovations in AI technology have made inventions “made by AI” a reality. Today, AI is able to “invent” not only new materials and machines but also manufacturing processes, pharmaceutical drugs, and household products. Soon, our life will be replete with artificial artifacts. In a sense, humans no longer stand at the center of the creative universe—we are no longer the masters of innovation.
Despite this upheaval on the horizon, the consequences for legal doctrine remain largely unexplored. The most fundamental disruption we are about to witness is the emergence of scenarios where the inventive input is made by AI—and where no human “fire of genius” is involved. The problem here is that patent doctrine is still founded on the idea that only human beings can be inventors. Accordingly, “inventions without an inventor” will fail before patent offices and courts. It does not take much imagination to see that with the increase in artificial inventiveness, the raison d’être of strict anthropocentrism will dwindle away. Indeed, the emergence of autonomously acting “artificial inventors” dissolves the law’s very foundations—its doctrine, policies, and practice. Unless we fill this vacuum with a new architecture, a system meltdown is inevitable. We desperately need a patent update for the era of artificial inventions.
This Article analyzes the status quo of artificial innovation—that is, inventions “made by AI”—and its regulation (or, rather, non-regulation) in the United States. On this basis, I offer suggestions on how to reconceptualize the law and recalibrate legal doctrine and practice in order to keep the patent system operative.
