'Hey AI Bot, Can You Find A Cure?' Artificial Intelligence As 'Persons' In Medicine, Healthcare, And Beyond

Artificial intelligence (AI) technologies are poised to further disrupt a wide-ranging span of industries, not least of which includes medical care and research. There are already patents granted for AI technologies directed at drug discovery, disease diagnosis, medical imaging, and precision medicine, among many others.

Innovations in machine learning and deep learning have helped propel these advances, and research entities, health care institutions, and innovative companies are seeking to harness the power of AI to ameliorate patient health and care and produce medical and basic science research faster and with new insights.

Patent protection is an early and critical consideration for many of these entities. It is an open question whether intellectual property law sufficiently accounts for all the aspects of AI or must adapt in view of this rapidly evolving and uniquely complex field of computer science.

To probe this issue especially as it relates to patent protection, the United States Patent and Trademark Office (USPTO) posed twelve questions to public stakeholders in a request for comment published in the U.S. Federal Register this past August. The purpose was to help determine whether the USPTO should issue new guidance on how it will examine patent applications related to AI inventions and/or whether new forms of intellectual property protection should be developed for AI inventions. In its request for comment, the USPTO shows an appreciation that many of the factors involved in developing, training, and using AI technologies are unique amongst the other computer science disciplines and that it may be appropriate to accordingly define a uniquely tailored application of the law or develop new laws to protect AI technologies.

In its questions, the USPTO can be seen grappling with the issues of inventorship (can an AI technology contribute to the conception of an invention?), ownership (can parties involved in the training of the AI technology own an invention created by the AI?), the level of written description disclosure required in the patent application (how much detail must be disclosed for deep learning algorithms having hidden layers and evolving weights?), enablement, subject-matter eligibility, and other issues having legal implications.

Many of the questions posed have philosophical underpinnings. Traditionally in Canada, only humans are recognized under the law as capable of being inventors. However, AI technologies...