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Abstract

As artificial intelligence (“AI”) advances, it not only affects our daily life, but also implicates patent law. The Federal Circuit Court of Appeals has already held in Thaler v. Vidal that only a natural human person can be an “inventor” entitled to receive a patent, thereby excluding AI. The rationale in Thaler centers on statutory interpretation, leaving open the question of whether AI is capable of fulfilling the conception requirement—an essential element of qualifying as an inventor and receiving a patent. This Comment aims to expand the rationale of Thaler and argues that AI cannot fulfill the conception requirement; thus, it should not be granted inventor status. This conclusion is reached through a Christian worldview analysis of what it means to be human and why the conscious human mind is unique.

Conception historically required the contribution of a human being’s mental capacity and today is defined as the act of a human mind. Humankind is unique amongst creation because it was created by God in His image and with a special purpose: human beings are to have dominion over and subdue the earth. We accomplish this purpose in part through our role as God’s sub-creators. While God can create from nothing, humans can create using only the natural resources that God created. This God-man relationship is reflected in the man-AI relationship. AI is created by humans in the image of man—it possesses the limited capacity to perform activities traditionally requiring human intelligence—and can also (to an extent) sub-create. Transcending these concepts is the purpose of all of creation: to glorify God. To do so, creation must remain in its proper position in the Biblical hierarchy. In this hierarchy, AI, a creation of man, must fall at the end. To place it in a position equal to man by giving it the right to obtain a patent would undermine this hierarchy and violate a Christian worldview.

Further, even if AI could have a conscious human mind, AI is not tethered to an objective moral code, unlike human beings who are tied to the objective law of nature and nature’s God. Because of this, granting AI inventor status would have unintended moral consequences. Along with moral obligations, God placed limitations on humankind that justify humankind placing limitations on AI. One of these limitations must be barring AI from qualifying as an inventor under patent law by explicitly requiring that the act of a human mind alone can fulfill the conception requirement. Finally, God gifted humans the unique ability to be conscious, a fundamental element of the conception requirement. There are three generally accepted theories of consciousness and the human mind. Within both a Christian worldview and materialistic worldview, AI is not conscious and can never be under each of the three theories. Thus, the act of a natural, conscious human mind should be an explicit element of fulfilling the conception requirement, barring AI.

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