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Hal the Inventor: Big Data and Its Use by Artificial Intelligence
Ryan Abbott1
Big data and its use by artificial intelligence are disrupting innovation and creating new legal
challenges. For example, computers engaging in what IBM terms “computational creativity”
(n.d.) are able to use big data to innovate in ways historically entitled to patent protection. This
can occur under circumstances in which an artificial intelligence, rather than a person , meets the
requirements to qualify as a patent inventor (a phenomenon I refers to as “computational
invention”).
Yet it is unclear whether a computer can legally be a patent inventor, and it is even
unclear whether a computational invention is patentable. There is no law, court opinion, or
government policy that directly addresses computational invention, and language in the Patent
Act requiring inventors to be individuals and judicial characterizations of invention as a “mental
act” may present barriers to computer inventorship.1 Definitively resolving these issues requires
deciding whether a computer qualifies as an “inventor” under the Patent and Copyright Clause of
the Constitution: “The Congress shall have the power … to promote the progress of science and
useful arts, by securing for limited times to authors and inventors the exclusive right to their
2
respective writings and discoveries.” Whether computers can legally be inventors is of critical
importance for the computer and technology industries and, more broadly, will affect how future
innovation occurs. Computational invention is already happening, and it is only a matter of time
until it is happening routinely. In fact, it may be only a matter of time until computers are
responsible for the majority of innovation and potentially displacing human inventors. This
1 Associate Professor of Law, Southwestern Law School and Adjunct As
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