‘Orphaned inventions’: Life-saving AI discoveries trapped in legal black hole

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‘Orphaned inventions’: Life-saving AI discoveries trapped in legal black hole

By Angus Dalton

In 2020, a team of MIT researchers used an AI algorithm to search a pool of 100 million molecules for new antibiotics.

The AI struck gold. It identified a molecule that can kill a range of bacteria, including the increasingly drug-resistant bug that causes tuberculosis. The scientists named the molecule halicin, referencing the scheming supercomputer HAL from 2001: A Space Odyssey in tribute to the molecule’s AI identifier.

“I’m sorry, Dave, I’m afraid I can’t do that.” In the 1968 sci-fi classic 2001: A Space Odyssey, a computer called HAL (Heuristically programmed ALgorithmic) takes over a spaceship.Credit:Fair Use

But the origin of AI-developed technology is also its shackle. Only humans can be listed as inventors on patent applications, meaning life-saving discoveries made by AI can’t be patented and progressed into products.

“We’re in this sort of legal black hole, where you can’t file a patent because there isn’t a human inventor,” said UNSW AI expert Professor Toby Walsh.

“That’s going to perhaps discourage invention, discourage companies investing in making new drugs, if they can’t protect things that are found with the help of, or even exclusively by, AI.”

Australia became the first place in the world to decide that an AI system could be listed as an “inventor” on a patent last year, before the Federal Court overturned the decision in May.

Professor Stephen Thaler, a US-based AI pioneer, brought the case because he wanted to patent two products “invented” by an AI system he created known as DABUS (a Device for the Autonomous Bootstrapping of Unified Sentience).

AI expert Professor Toby Walsh has called for international patent law reform to allow the recognition of non-human inventors.

AI expert Professor Toby Walsh has called for international patent law reform to allow the recognition of non-human inventors.Credit:UNSW

One of the products developed by DABUS is a beacon Thaler dubbed a “neural flame”. It’s a device that maximises the chance of attracting attention in an emergency by flashing in a sequence based on human brain activity. The other invention is a drink container made of a “fractal” material ideal for being handled by prosthetic or robotic hands.


Following the 2021 ruling that found an inventor didn’t have to be human, last month five judges in a Federal Court appeal unanimously decided that an inventor must be a “natural person”. The decision brought Australia back into line with the US, the UK, and Europe.

Thaler has filed patent applications on behalf of DABUS in at least 15 countries.

“Over the next few decades, AI systems will be pouring out what we normally think of as patentable and copyrightable subject matter,” he said. “If the law does not grant such IP protection, then there will be many ‘orphaned’ inventions and artistic works, not to mention many less than honest declarations of inventorship.”

In a recent paper in Nature, Walsh called on the World Trade Organisation to investigate and overhaul IP law to make way for new technologies and medicines discovered by AI.

“I’m not saying that AIs need to be a legal entity or AIs need to own the patent,” said Walsh. “What we probably need is some new form of patent.”


Walsh is advocating for an international treaty to establish and recognise a new kind of “AI-IP” law that would allow AI systems to be recognised as inventors, while the ownership of those inventions remains with humans.

AI systems have recently aided the development of drugs that could treat obsessive-compulsive disorder, Alzheimer’s disease and COVID-19.

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