When AI designs a drug, who gets the credit?

When Insilico Medicine employed its AI platform to propose a promising drug for pulmonary fibrosis, the biotech company proudly declared in a press release that the molecule had been “discovered by” its generative AI. The advent of AI models capable of generating atomic designs for drugs with ease, similar to how ChatGPT crafts a thank-you note, has ignited a race to develop new treatments.

However, when it came time to secure a patent to safeguard the new chemical structure, Insilico made no mention of AI, listing five humans, including CEO Alex Zhavoronkov, as the drug's "inventors." This discrepancy highlights a unique facet of intellectual-property law: while AI plays a crucial role in the discovery, only humans can claim credit for an invention.

In a pro bono test case, Ryan Abbott, a partner at Brown, Neri, Smith & Khan, brought a challenge to US courts when he named an AI called DABUS as the inventor of a novel food container. Despite the philosophical implications, the appeals court ruled that US statutes only recognize an "individual" as an inventor, which, strictly interpreted, means a human.

Consequently, machines cannot be inventors, and there must be a human behind the invention. Sarah Korman, a patent attorney and chief business officer of Isomorphic Labs, an Alphabet spinout focused on AI cures, emphasizes that laws will need to adapt to accommodate AI developments. While AI systems may perform acts that could qualify as inventorship under the law, the critical question lies in whether a human has contributed sufficiently to be named an inventor.

Abbott anticipates legal challenges to AI-generated drugs, as excluding AI-generated outputs from patent protection could hinder future drug development. The US Copyright Office's refusal to grant copyrights to AI-generated images and text also raises concerns, particularly from entities like the Motion Picture Association of America, which rely on such tools.

The US Patent Office currently adopts a cautious approach, publishing guidance to help applicants determine inventorship but later reversing its stance, treating AI merely as a tool, akin to a calculator. Insilico Medicine's Zhavoronkov reassures that human chemists still participate in the synthesis, variant creation, and testing phases, ensuring human involvement remains integral, even in a potentially more automated process.

The question of whether pushing a button to initiate the process should be considered inventorship remains a topic for future legal debates.