When AI designs a drug, who gets the credit?

When the biotech company Insilico Medicine used its computer models to propose a promising drug for pulmonary fibrosis, it enthusiastically claimed in a press release that the molecule had been “discovered by” its generative AI platform. Insilico leads a pack of companies using AI to rapidly come up with drug ideas humans might never think of, potentially speeding the race to new cures. AI models are now able to generate atomic designs for drugs almost as easily as ChatGPT can write a thank-you note.

However, when it came time to file for an all-important patent to protect that new chemical structure, the company made no mention of AI. Instead the patent names five humans, including CEO Alex Zhavoronkov, as the drug’s “inventors.” The discrepancy points to a fascinating wrinkle in intellectual-property law. No matter how fundamental an AI is to a discovery, when it comes to winning rights to an invention, it’s humans—and only humans—who can take the credit.

US courts reached that conclusion after Ryan Abbott, a partner at the LA law firm Brown, Neri, Smith & Khan, brought a pro bono test case naming an AI called DABUS as an inventor of a better food container, whose intricate geometric surface lets it transfer heat well and stack easily. Because no human contributed to the design, Abbott argued that the AI should be named the inventor. The case might have raised philosophical questions, like whether AIs deserve legal rights or what the true nature is of that eureka moment that leads to a better mousetrap.

But in 2022, an appeals court in Washington, DC, said these “metaphysical matters” were beside the point. Instead, it noted that US statutes describe an inventor as an “individual,” the plain meaning of which is a human being. Since machines aren’t people, they can’t be inventors.

Korman, who made her remarks at MIT Technology Review’s EmTech event last year, added that there is “no doubt” our laws will need to evolve to keep pace with AI. That’s partly because no one is denying that AIs can invent things. In the future, they may do so with less and less human intervention.

As the US Patent and Trademark Office has itself acknowledged, “an AI system—like other tools—may perform acts that, if performed by a human, could constitute inventorship under our laws.” Instead, the key question going forward may actually be whether or not any human contributed enough to be named as an inventor. Abbott believes there could be legal challenges to AI-generated drugs, since one way to invalidate a patent is to show it has the wrong inventors listed. Abbott’s worry is that if US policy excludes AI-generated outputs from protection, that could put a damper on future drug development.