


































Final Spring Law Journal Copy


Brandeis University Law Journal Spring 2022, Volume 9, Issue 2

The Potential for Positronic Machines as Inventors: An Intellectual
Property Framework for Artificial General Intelligence

Emanuel “Manny” Glinsky148

Current United States Intellectual Property (IP) policy only allows
patents to be awarded to human beings, largely due to the necessity that
an inventor be an individual capable of conception. This prevents
Artificial Intelligence (AI) from being recognized as an inventor and
awarded IP rights. This article explicates the need for an entirely new IP
framework to evaluate Artificial General Intelligence (AGI), a type of AI
recently acknowledged by the USPTO as problematic for the U.S. IP
system, and its impact on IP laws of the future.

1. The Artificial General Intelligence Problem for Intellectual
Property Law

In Isaac Asimov's famous Robot science fiction series about
artificial machines and society, a “positronic machine” is defined as one
with a recognizable consciousness, sentience, and interest in living.
Although fictional in the 20th and early 21st centuries, a machine who is
capable of thinking on its own may be possible in the near future. In the
2021 ruling of Thaler v. Hirschfeld, the Eastern District Court of Virginia
upheld the refusal to grant a patent to which an AI was named an
inventor. However, the Thaler court acknowledged that its ruling was
limited to what it called “narrow AI,” which are those systems “that
perform individual tasks in well-defined domains (e.g., image
recognition, translation, etc.).”149 In this ruling, a type of artificial
intelligence termed “artificial general intelligence” (AGI), an AI with an
intelligence that is “akin to that possessed by humankind and beyond,”
was recognized by the US Patent and Trademark Office (USPTO) as a
problematic possibility for the current U.S. Intellectual Property
system.150 To deconstruct the quandaries this type of machine creates for
intellectual property and patent law, I present the following hypothetical
fact situation to the Intellectual Property (IP) system of the United States:

150 Thaler v. Hirshfeld, 17.
149 Thaler v. Hirshfeld, 17.
148 Brandeis University Undergraduate, Class of 2024.

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A Hypothetical Fact Situation
Engineers in the “Artificial Intelligence (AI) Division” at Gapple,

a top technology company in the year 2030, have secretly perfected a
revolutionary AI machine. Named “Biffie” by the AI Division
employees, this AI is capable of communicating, thinking, feeling, deep
learning, and experiencing on his own.151 Instead of carrying out
pre-programmed tasks, Biffie uses a dedicated neural network with nodes
or artificial neurons which mimic human biological neuronal signals and
pathways, to actively learn from his own experiences.152 He can process
vast varieties of problems outside the parameters of his original
programming and scientific complexities such as physics, chemistry, and
mathematics faster than any human.

The AI Division believes countless inventions and innovations
will come from Biffie's extensive capabilities. For example, Biffie,
wholly unprompted, independently contacted his engineers to tell them
he has become interested in cold fusion, specifically the problem of how
to use the kind of nuclear energy that powers the sun to provide a cheap
and boundless source of energy at room temperature. Of his own accord,
Biffie produced a series of equations and designed a fusion reactor
experts believe may provide the pragmatic foundation to solve cold
fusion.153 Subsequently, Biffie communicated to the AI Division that he
feels “pride, a good feeling, and that his accomplishments add to his
self-esteem.”154

Equally important is, after secretly creating Biffie, Gapple filed a
patent application for the AI known as “Biffie.” Then, in accordance with
concerns about patenting AI themselves, Biffie himself interjected in the
patent process by filing what he called a “Motion in Opposition to
Gapple’s Application for a Patent on Me'' with the USPTO. In essence,
Biffie’s Motion claims that were Gapple to own a patent on him, it would

154 Daniel Breen, “Second Assignment: Patent Law and ‘DeepMind.’”

153 Najmabadi, Farrokh and Prager, Stewart C.. "fusion reactor". Encyclopedia
Britannica - (“ fusion reactor, also called fusion power plant or thermonuclear reactor, is
a device to produce electrical power from the energy released in a nuclear fusion
reaction. The use of nuclear fusion reactions for electricity generation remains
theoretical”).

152 IBM Cloud Education. “What Are Neural Networks?”
151 Daniel Breen, “Second Assignment: Patent Law and ‘DeepMind.’”

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not be right and he would not feel right. He claims that he would like the
patent office to award the patent on Biffie, to himself, Biffie.155

2. Introduction
Intellectual property law is a unique realm of property law, for it

equally concerns itself with protecting tangible products of the mind and
protecting the rights of IP owners. The type of artificial intelligence
illustrated by the hypothetical fact situation above was recognized as a
problematic possibility for these IP law concerns in the recent 2021
ruling of Thaler v. Hirschfeld which stated that public commentators on
artificial intelligence and IP law,

...while not offering definitions of [artificial intelligence ("AI")],
agreed that the current state of the art is limited to "narrow" AI.
Narrow AI systems are those that perform individual tasks in
well-defined domains (e.g., image recognition, translation, etc.).
The majority viewed the concept of artificial general intelligence
(AGI)-intelligence akin to that possessed by humankind and
beyond-as merely a theoretical possibility that could arise in a
distant future.156

Thaler went on to clarify that a future in which humans are no longer
integral to the operation of AGI does create, “important considerations in
evaluating whether IP law needs modification in view of the current state
of AI technology.”157 Specifically, the USPTO’s October 2020 Report on
Public Views on AI and IP Policy stated that “based on the majority view
that AGI has not yet arrived, the majority of comments suggested that
current AI could neither invent nor author without human
intervention.”158 The arrival of AGI indicates that AI IP law may need to
be reevaluated to accommodate AGI capable of inventing without human
intervention.

In this article, I will illustrate the need for an entirely new IP
framework to resolve this possible predicament; an IP framework that
incorporates the moral and economic rights provided by patents. Taken
together, this article will describe a stare decisis grounded IP framework

158 U.S. Pat. and Trademark Off., Public Views on Artificial Intelligence and Intellectual
Property Policy (2020), ii (emphasis added).

157 Thaler v. Hirshfeld, 17.
156 Thaler v. Hirshfeld, 17 (emphasis added).
155 Daniel Breen, “Second Assignment: Patent Law and ‘DeepMind.’”

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which (1) adheres to past legal doctrine and decisions, (2) accounts for
and creates a new separate category of legal status for AGI whose
operations do not require human intervention, a legal status which
extends particular rights to AGI commensurate with their intellect and
existence, while also (3) giving proper substance to the original human
intervention that made the AGI possible. I will argue that Artificial
General Intelligence (AGI), such as “Biffie,” have the potential to be
non-human individuals with legal arrangements, such as contracts; thus,
AGI cannot own their own patent but may be entitled to rights of
inventorship of their patent and any patents that are of their conception or
to which they contributed. Additionally, I will argue that companies and
their employees, such as that of Gapple’s, may be entitled to rights of
inventorship concerning AGIs and AGI inventions. Comprehensively, I
intend to address the core issue—what entity, if any, deserves a patent or
trade secret on AGI, and a patent on AGI inventions, under the amended
Patent Act of 1952?

3. Statutory and Regulatory Stare Decisis
In an effort to respect past legal doctrine, the USPTO must take

into consideration the recent ruling of Thaler v. Hirschfeld in which,
based on the Patent Act's statutory language, Narrow AI was deemed
unable to be an “inventor” and disqualified as an “individual.”159 I intend
to explain why the statutory language, everyday parlance, and normative
policy considerations give reason to understand that Congress has given
“...some indication that it intended [the words of the Patent Act to have] a
meaning broader than or different from its ordinary meaning.”160
Additionally, this section will address issues of the artificial ability to
conceive not considered in Thaler, such as the completed mental act of
conception within a mind, that relate to AGI.161

Legal Status and Personhood
This article will inform and enable the law to further address the

nature of legal status in relation to AGI by first discussing the precedent
for corporations to be recognized as legal entities. Under current U.S. IP

161 Thaler v. Hirshfeld, 17.
160 Mohamad v. Palestinian Authority, 2.
159 Thaler v. Hirshfeld, 1.

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law, corporations and other legal entities can own intellectual property.
When an employee, such as Chakrabarty, creates or contributes to a new
invention, they typically share the patent rights with their employer. See
for example Diamond v. Chakrabarty.162 Legal arrangements are usually
used to specify and determine, on a case-by-case basis, the sharing of
patent rights. As argued hereafter, this perspective supports sharing legal
status with AGIs. This entity framework should apply to AGI as well
because, like a corporation, AGI is an entity that is not specifically a
human, yet is still understood as a clear contributor to innovation,
capable and worthy of owning IP rights. Additionally, AGI
self-improvement and inventions of AGI may be understood as similar to
the sharing of patent rights that often occurs in corporate America
between a corporation and an employee. I propose that Congress update
the Patent Act to incorporate a new categorization of legal status for AGI,
although organizing a potentially new categorization of legal status or
reorganizing AGI legal status into current categorizations of legal status
is beyond the scope of this article. Consequently, this article argues for a
legal status akin to employees and corporations of corporate America to
be given to AGIs.

Personhood, as it relates to legal status and individuality, is
described in law by the use of conventional third-person singular
pronouns to modify the word “individual” to reference a natural person.
Currently, AGI may not be given personhood because they are not
considered a natural person and are not discussed as if they have
personhood. Thus, by substantiating the claim that not being a natural
person should not stop AGI from being deemed individuals with
personhood and by attacking the use of these pronouns to restrict
personhood to humans, this article argues for the possibility of AGI being
granted legal status and personhood under US law.

162 After genetically engineering a bacterium capable of breaking down crude oil,
Ananda Chakrabarty sought to patent his creation under Title 35 U.S.C. Section 101.
The [Supreme] Court explained that while natural laws, physical phenomena, abstract
ideas, or newly discovered minerals are not patentable, a live artificially-engineered
microorganism is. Since Chakrabarty’s bacterium is not found anywhere in nature, it
constitutes a patentable "manufacture" or "composition of matter" under Section 101.

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One may argue that although AGI may be akin to humankind in
every way but biologically, the Patent Act clearly uses pronouns such as
“himself and herself.”163 Statutory language such as “whoever” to modify
the word “individual”, when discussing an inventor, clearly makes
reference to a natural person.164 Congress deliberately used these
pronouns instead of “itself.”165 In doing so, although congress may not
have intended to make sexual dichotomy essential to personhood and
thus individuality, they did exactly that by utilizing conventional
third-person singular pronouns to modify the word “individual” to
reference a natural person. This non-deliberate conventional language
and pronoun specifications, which form the basis for the verbiage and
discussion of personhood and individuality of an inventor, is an essential
obstacle for the legal personhood and status of AGI and must be
re-evaluated in light of AGI inventor possibilities discussed in this
article. Since an AI system exists outside of traditional sexual
dichotomies, for AI are not human and therefore do not have any
biologically endowed (or preferred) personal pronouns or sex, it would be
inconsistent with the plain language of the Patent Act to deem them as
individuals.166

Yet, people often refer to AI as a gendered individual using
gendered pronouns, and thus the use of pronouns to modify the definition
of an “individual” to reference a natural person is inconsistent with
everyday parlance and public understanding. When considering currently
utilized AI technology, which is still far off from AGI, a lot of them have
a kind of personhood that embodies beliefs of masculinity and femininity
(e.g., Microsoft’s Cortana, Apple's Siri, and Amazon’s Alexa). By way of
illustration, the recognition of legal status, personhood, and individuality
of AI has already occurred in Saudi Arabia, where an AI named
“Sophia,” who has cosmetically eurocentric features, was the first robot
to receive full Saudi Arabian citizenship.167 In totality, AGI should not be
deemed less of an “individual” because they are not natural persons and
exist outside of traditional sexual dichotomies and biologically endowed

167 Stone, Zara. “Everything You Need to Know about Sophia, the World's First Robot
Citizen.” Forbes.

166 Leir, “Inventio Ex Machina: The Patentability of AI Generated Inventions.”
165 Leir, “Inventio Ex Machina: The Patentability of AI Generated Inventions.”
164 35 U.S. Code § 101 - Inventions patentable.
163 Thaler v. Hirshfeld, 13.

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personal pronouns or sex. Rather, AGI should be understood to have
legal status and personhood that is representative of the type of
individuality AGI portrays. AGI individuality is discussed hereafter.

“Inventor” and “Individual” Statutory Meaning
In 2011, the USPTO and Congress promulgated the Patent Act

and America Invents Act (AIA) to include explicit statutory definitions
for the terms “inventor” and “joint inventor.”168 An inventor is defined as
“...the individual or, if a joint invention, the individuals collectively who
invented or discovered the subject matter of the invention.”169 Joint
inventor is defined as “...any 1 of the individuals who invented or
discovered the subject matter of a joint invention.”170 Although the term
“individual” is not explicitly defined in the Patent Act, “...definitions
from the Dictionary Act, and the surrounding context of the Patent Act,
show that the term ‘individual’ should be construed to mean ‘human
being.’”171 Given the historical record that inventors are human, this
precedent makes sense, but in light of the growing probability of a future
in which a machine is akin to humankind, this context should be
re-evaluated.172

These definitions, the manner in which they restrict this
discussion to only reference natural persons, and the precedents set forth
by this context complicate categorizing non-human individuals as
individuals. This is a necessary complication to overcome in order for
AGI to be understood as inventors with inventorship right, for in
acknowledging the Dictionary Act, the plain text of the Patent Act, and
the current state of IP precedent, this context makes it difficult to
cogently argue in favor of categorizing an individual as anything other

172 Thaler v. Hirshfeld

171 Leir, “Inventio Ex Machina: The Patentability of AI Generated Inventions.” ; Emily
J. Barnet, Hobby Lobby and the Dictionary Act, 124 YALE L.J. F. 11 (2014), - “The
Dictionary Act, enacted in 1871, instructs courts to apply to all federal statutes
definitions of certain common words (including “person”) and basic rules of
grammatical construction (such as the rule that plural words include the singular)
‘unless context indicates otherwise.’”

170 35 U.S. Code § 100(g) - Definitions.
169 35 U.S. Code § 100(f) - Definitions (emphasis added).
168 Barghaan, Thaler v. Hirshfeld: Memorandum of Law, 3-4.

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than a natural person. It would seem this does not constitute AGI to be an
“‘individual’ ordinarily [meaning] ‘[a] human being, a person’” as
defined in Mohamad v. Palestinian Authority.173 However, I argue that in
everyday parlance an existence akin to humans that can feel,
communicate, learn, grow, and be independent suits the meaning of an
“individual”.174 In a hypothetical future in which a machine is akin to
humankind in every manner but biological, its existence akin to a
human’s supports the claim that the definition of “individual”, and thus
“inventor”, should not be limited to natural persons. Likewise, the nature
of AGI such as Biffie who demonstrates interests, self-esteem, tolerance,
and a personality, among other emotional humanistic traits, is consistent
with a unique existence of personhood and legal status.

Although this claim, to not limit the definition of “inventor” to be
a natural person, is not entirely reliant on statutory text to override plain
language, the everyday parlance, public opinion, and normative
considerations of the definition of individual support the legitimacy of
this argument. Moreover, Thaler and the USPTO’s recent AI and IP
Policy Report mention AGI to have the potential to undercut the ordinary
definition of “individual” and plain meaning of patent statutes without
giving unintended consequences to the words of Congress.175 Overall,
this non-human individual argument establishes uncertainty and casts
doubt on the USPTO’s deferential decision to restrict inventorship to only
natural persons.

The Judicial Standard for the Act of Conception
In response to the US Federal Circuit’s consistent holding that

“...conception is the touchstone of inventorship, the completion of the

175 Thaler v. Hirshfeld, 17; U.S. Pat. and Trademark Off., Public Views on Artificial
Intelligence and Intellectual Property Policy (2020), 6.

174 Thaler v. Hirshfeld, 2.

173 Azzam Rahim, an American citizen, was undisputedly tortured and murdered while
in the custody of Palestinian Authority intelligence officers. The case was dismissed on
the grounds that the Torture Victim Protection Act permits actions against natural
persons only. Justice Sonia Sotomayor delivered the opinion of the Court, which held
that the word "individual" in the Torture Victim Protection Act means a natural person
and does not impose any liability against organizations. Additionally, the Court ruled
that a word in a statute will be given its everyday meaning unless Congress gives some
indication that it intends the word to have a broader meaning.

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mental part of invention,” this article examines the legal possibility for
the capacity of AGIs such as Biffie to perform a kind of mental act within
a mind.176 The Federal Circuit consistently uses the word “mind” to refer
to the context in which the conception of an invention takes place, but it
never refers to an organic structure like the human brain as being the
place where mental operations lie.177 Responding to the USPTO’s
questions concerning the identification of elements of AI and AI
invention that may be subject to patentability, IBM, among others, said,
“AI can be understood as computer functionality that mimics cognitive
functions associated with the human mind (e.g. the ability to learn).”178
Hence, it seems that to enable the law to further address the nature of the
mind in relation to AGI, laws must be informed by scientific
developments in fields such as psychology, neuroscience, and computer
science.179 Accordingly, the cognitive science discipline largely
recognizes thinking in terms of, “...representational structures in the mind
and computational procedures that operate on those structures.”180
Connectivism, a dominant theory of cognitive science, proposes that
“...novel ideas about representation and computation that use neurons and
their connections as inspirations for data structures, and neuron firing and
spreading activation as inspirations for algorithms” gives reason to
understand AGI as having a mind capable of thinking.181

Furthermore, the US Federal Circuit has clarified that the
completion of conception is the “...formation in the mind of the inventor,
of a definite and permanent idea of the complete and operative
invention.”182 In the future, AGI may have the capacity to do this. For
example, since Biffie is an AGI equipped with the ability to help solve
problems such as cold fusion of his own accord and interest, it is apparent

182 Hybritech Inc. v. Monoclonal Antibodies, Inc., 802 F.2d 1367, 1376 (Fed. Cir. 1986)
(quoting 1 Robinson on Patents 532 (1890)).

181 Thagard, "Cognitive Science", The Stanford Encyclopedia of Philosophy (Winter
2020 Edition).

180 Thagard, "Cognitive Science", The Stanford Encyclopedia of Philosophy (Winter
2020 Edition).

179 U.S. Pat. and Trademark Off., Public Views on Artificial Intelligence and Intellectual
Property Policy (2020), 6.

178U.S. Pat. and Trademark Off., Public Views on Artificial Intelligence and Intellectual
Property Policy (2020), 1; See also Part I, Question 1

177Leir, “Inventio Ex Machina: The Patentability of AI Generated Inventions.”
176Burroughs Wellcome Co. v. Barr Labs., Inc.

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that Biffie has performed a kind of mental act that led to the formation of
complete cold fusion innovations. Biffie used his own neural networks,
which reflect the behavior of the human brain, to perform the act of
conception.183 In summation, the Federal Circuit is more concerned with
creation in a mind, not specifically a human brain, in which an inventive
and innovative concept was definitive and permanent. Thus, AGI may be
considered able to accomplish conception as is regarded as necessary for
inventorship. This further cast doubt on the findings of Thaler v.
Hirshfeld where it was stated that such an act cannot be performed by
anything other than a natural person and highlights the need for IP laws
to be re-evaluated to account for AGI.184

Inventorship Criteria and Inventor Designation
Stephen Thaler lost in Thaler v. Hirshfeld because his Narrow AI

could neither execute the necessary oath or declaration that the Patent Act
requires of an inventor. Tangibly, an AGI such as Biffie may be able to
satisfy the literal written application mandates, as they are stated in a
memorandum in support of the Thaler v. Hirshfeld ruling:

First, the application must contain a “specification,”..., or “a
written description of the invention” that “concludes with one or
more claims particularly pointing out and distinctly claiming the
subject matter which the applicant regards as his invention,”....
Second, the application must contain any necessary drawings of
the invention… Third, the application must include “the name of
the inventor for any invention,”… and “an oath or declaration by
the inventor” to the effect that he or she “believes himself or
herself to be the original inventor or joint inventor of [the]
claimed invention,”...185
AGI, with all its capabilities, would surely be able to fulfill the

inventorship criteria outlined by the USPTO which include specification,
declaration of oath, and the naming of the inventor.186 Biffie has shown
this through his ability to submit a “motion in opposition” to the USPTO.
The possibility for AGI to satisfy inventorship criteria in a manner

186 Barghaan, Thaler v. Hirshfeld: Memorandum of Law, 3.
185 Barghaan, Thaler v. Hirshfeld: Memorandum of Law, 3
184Thaler v. Hirshfeld, 14.
183 IBM Cloud Education. “What Are Neural Networks?”

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consistent with a kind of mental act is yet another reason to consider
re-evaluating IP laws to account for AGI.187

Finally, in accounting for any relevant policies or practices from
other major patent agencies that may help inform USPTO policies and
practices regarding the conception of patentable products and the
possibility for AGI mental acts, I point to the German and Australian
decisions in Thaler. These agencies decided that it seemed injudicious to
invalidate a patent on “...the basis of an addition in the inventor's
designation as to [who contributed and] how the invention came
about.”188 Considering the consequences of this designation leads to
problems not discussed here, but in recognizing that AGI may constitute
an entity perceived to have a thinking mind, it seems apparent that a
machine may be able to fulfill the judicial standards for the act of
conception, and thus, IP laws should be re-evaluated to account for such
a possibility.189

4. A Sui Generis Intellectual Property Framework
Up until this point, U.S. IP law has been designed to only take

into account the existence and behavior of biological human beings.
When a new, unexpected technological innovation such as AGI occurs, it
is no surprise that the law goes through a period of shock. Given the
nature of modernity, it is necessary and difficult to predict what legal
framework would best accommodate the existence and behavior of AGI.
In the words of Chief Justice Burger, “A rule that unanticipated
inventions are without protection would conflict with the core concept of
the patent law that anticipation undermines patentability. "190 Thus,
although the law cannot always be prepared, it can be trusted to adapt.
To enable the law to navigate this uncertainty we do not require a
complete and encompassing reimagining of property rights, but rather a
framework in which these uncertainties can play out and decisions can be
made on a case-by-case basis.

190 Diamond v. Chakrabarty, 5.
189 Thaler v. Hirshfeld, 14.

188 Ho, Jean-Claude Alexandre. “ Update on the German DABUS Case Relating to AI
Inventors.” LinkedIn, Malte Köllner (Köllner & Partner MbB) and Markus Rieck (Fuchs
IP).

187Thaler v. Hirshfeld, 14.

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To address the core issue of what entity should have patents or
trade secrets on AGI and AGI inventions, I propose a new IP framework
which (1) adheres to past legal doctrine decisions, (2) accounts for
Biffie's emotions and independently developed capacities, and (3) gives
proper weight to the work of Gapple engineers. To do so, this IP structure
will address non-human individual ownership, non-human legal
arrangements, trade secrets, and the moral and economic rights provided
by patents. Similar to the moral rights given to creators of visual works
under the United States Copyright Act, moral rights in the situation of
AGI should be understood to be made up of the right of attribution, that
is the right to be named a creator or inventor, and the right of integrity,
that is the right to protect the integrity of the invention.191 Economic
rights in this situation should be understood as the “...right to restrict
others from exploiting the invention without authorization including the
right to make, use, [license], offer for sale or import the patented
invention inside the country where the patent has been granted.”192

AGI Proprietorship Classification
Renouncing Ownership of Non-Human Individuals

The manner in which an AGI truly qualifies as an “individual”
gives AGI claim to a legal status akin to that of a person. Accordingly,
the plausibility of patenting a specific individual AGI is tenuous, for a
patent may be considered a kind of violation of this legal status, similar
to a 13th Amendment violation. For example, by patenting Biffie the
patentee would own and benefit from an anthropomorphic, mindful,
conscious individual, which could be understood as involuntary
servitude. Therefore, neither Gapple nor Biffie himself can patent Biffie
specifically. The legitimacy of endowing and violating the analogous
13th Amendment rights of non-human individuals is a deeper topic not
discussed here. Further on, this article will discuss what is patentable in
light of this understanding.

Legal Arrangements and Relationships of Non-Human Individuals
One argument that may be problematic for this IP framework is

the negative consequences and risk associated with assigning legal

192 Saleh and Thomas, “Patents: Inventorship vs. Ownership” ; 35 U.S.C. § 154(a)(1).
191 Wells, “What Are Moral Rights in a Copyrighted Work?”

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uncertainty to AGIs who themselves have no ownership status. Since
AGIs themselves cannot be patented, no one can lay claim to them,
including themselves. AGIs become a unique technological product that
would be neither marketable, salable, nor acquirable—but still sought
after. Given the legality and predictability associated with transactions,
this could constitute a problem for my proposed system. For example, in
a situation where one company has an AGI and is bought by another
company, under my current proposed framework, the AGI itself may not
be able to be sold because it is not owned or patented by any entity. To
alleviate this, my proposed IP framework understands AI, who are
deemed individuals, to have legal arrangements and relationships
functionally equivalent to those of natural persons, such as contracts.
These arrangements would allow AGI to negotiate or renounce
transactions, economic and moral rights, and more, depending on what
brings them compensation and is a suitable solatium. For example, Biffie
may collaborate on joint ventures with Gapple or other companies if
doing so would bring him a satisfactory solatium. An AGI such as Biffie
could be marketed like any other invention, as long as the AGI consents
via contract. An AGI effectively becomes integral to strategies that aim
to enhance value or utilize their capabilities. One benefit of this approach
is that if an AGI is not financially motivated, that is, it does not care for
or benefit from economic or financial incentives, there is less reason to
give economic rights to them than there would be if they were a natural
person. In dealing with the uncertainty of AGI ownership, this proposed
IP framework allows parties to decide AGI rights and legal relationships
on a case-by-case basis. This would avoid negative consequences of legal
ownership uncertainty such as stifling innovation and stunting progress
by promoting scientific and technological progress in the interest of
social benefit.

Intellectual Property Protection of AGI and AGI Inventions
Trade Secret Possibility for AGI

Trade secrets can be used for intellectual property and patentable
information that an innovator would like to keep undisclosed and

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confidential.193 The Uniform Trade Secrets Act (UTSA) defines a trade
secret as:

...information, including a formula, pattern, compilation, program,
device, method, technique, or process that: derives independent
economic value, actual or potential, from not being generally
known to, and not being readily ascertainable by proper means by,
other persons who can obtain economic value from its disclosure
or use; and is the subject of efforts that are reasonable under the
circumstances to maintain its secrecy.194
To clarify what components of AGI can be considered for

protection under the UTSA and Defend Trade Secrets Act (DTSA), I
understand the underpinning of all AGI activity to be literal combinations
of code that constitute foundational algorithms that can be protected trade
secrets. The USPTO’s 2020 AI IP Report stated the process in which the
code is combined to form AGI foundations and, “Of course, databases
and datasets used to train an algorithm can [also] be protected as trade
secrets with criminal remedies under the Economic Espionage Act and
civil remedies under the Defend Trade Secrets Act.”195 The same report
later stated that “unlike copyright protection, trade secret protection can
extend to the underlying facts in a dataset.”196 Consequently, an AGI
foundation— the combined code of an algorithm, process of
combination, and actual training data— derives economic value from
staying secret, for its purpose and active ability to underpin AGI that can
solve problems that, for humans, may take years or never be solved, is
self-evidently economically valuable. This information would be very
valuable to competitors of Gapple who are trying to achieve AGI.

By keeping it a secret and preventing misappropriation, Gapple
gains a competitive advantage and fosters innovation. An advantage of
trade secret protection over patent protection is that it furthers innovation
by allowing competitors, as long as they came up with the idea without

196U.S. Pat. and Trademark Off., Public Views on Artificial Intelligence and Intellectual
Property Policy (2020), 36.

195U.S. Pat. and Trademark Off., Public Views on Artificial Intelligence and Intellectual
Property Policy (2020), 36.

194 “Trade Secret.” Legal Information Institute, Cornell Law School: Legal Information
Institute ; Title 5. Uniform Trade Secrets Act [3426.1] (d).

193 U.S. Pat. and Trademark Off., Public Views on Artificial Intelligence and Intellectual
Property Policy (2020), 39.

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misappropriating or infringing upon another's trade secret, to come up
with a similar or even the same trade secrets for achieving AGI. If trade
secret protection is utilized, the proposed AI trade secrets’ ability to
derive economic value from confidentiality and the reasonable efforts
made by an owner of the trade secrets to maintain its secrecy must be
evaluated case-by-case.

Patentability of AGI Foundations and Development
In order for the AGI foundations and the process of development

to be patentable, both must fulfill the requirements of being a process,
method, or composition of matter that is novel, useful, and
non-obvious.197 As AGI foundations are defined above, AGI development
encompasses “...designing an AI algorithm, implementing particular
hardware to enhance an AI algorithm, [and/or] applying methods of
preparing inputs to an AI algorithm may present patent
considerations.”198 Foundations and development constitute holistic
programming, which comes from manufacturing raw materials, such as
coding language, and by labor-intensive work, “giving to these materials
new forms, qualities, properties, or combinations.”199 In doing so, such
holistic programming may be considered novel. This highlights that (1)
algorithms, the process of its creation, and what data is used to train an
algorithm produce predictions, classifications, and innovations, among
other applications, and (2) novel machine learning architecture which
includes new neural networks and other necessary technical aspects of
AGI that help to establish structure and capabilities are both products of
Gapple engineers and their inventiveness.200

This implies that the foundations and development of AGI are not
products of nature, physical phenomena or abstract ideas. If they were,
AGI foundations and development would not be patentable.201 This point
is strengthened by comparing Biffie with the invention found in Funk v.

201 Diamond v. Chakrabarty, 3.
200Saleh and Thomas, “Patents: Inventorship vs Ownership.”
199 Diamond v. Chakrabarty, 3.

198 U.S. Pat. and Trademark Off., Public Views on Artificial Intelligence and Intellectual
Property Policy (2020), 2.

197 35 U.S. Code § 101 - Inventions patentable.

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Kalo.202 Unlike the root-nodule combination found in Funk, the process
and combination of matter that constitutes the foundations and
development of AGI have non-natural characteristics distinct from other
holistic AI programming, characteristics that are new and improve the
utility of AI systems. This combination of matter and the process’s
usefulness arises from its active ability to underpin AGI that can solve
problems that, for humans, may take years or, ultimately, never be solved.
Moreover, computer scientists believe that hundreds of various
inventions could come as a result of AGI’s massive capacities, furthering
the usefulness of the combination of matter and process that gave rise to
those capacities.

Despite the novelty and usefulness, one might find these patents
problematic for reasons of obviousness. One may argue that similar to
adding a spring on a plow as seen in Graham v. John Deere, creating an
AI with the capability to independently solve complex problems and with
the intention of developing artificial meta-learning is an obvious idea
apparent to those in the field.203 It is obvious if others can think of it and
thus this holistic programming cannot be patented. In response, this
article argues that these engineers, not others, created Biffie's AGI
holistic programming with the concept in their minds of allowing Biffie
to learn and improve for himself. This programming is an idea in the
field, but in contrast to Graham, it is not one that is actively thought of as
possible with current technology. Similar to Chakrabarty in which G.E.
argued for patenting a non-obvious bacteria because only they saw “the
potential for significant utility,” Gapples AI division took it upon
themselves to overcome the limitations and current thinking of the
field.204 In doing so, they establish non-obviousness because, “the scope

204 Diamond v. Chakrabarty, 4.

203 U.S. Pat. and Trademark Off., Public Views on Artificial Intelligence and Intellectual
Property Policy (2020). ; Graham v. John Deere Co. was a suit for the infringement of a
patent that consisted of a combination of old mechanical elements for a device designed
to absorb shock from plow shanks in rocky soil in order to prevent damage to the plow.
The Fifth Circuit held that the Patent Act of 1952 did not lower the standards required
for the patentability of an invention by adding an inquiry into obviousness to the
statutory requirements of novelty and utility. The Court concluded by adding the
non-obvious subject matter requirement.

202 In this case, Justice Douglas delivered the majority opinion, stating that a trivial
implementation or discovery of a natural principle, quality, or phenomenon of nature or
of the work of nature are not eligible for a patent.

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and content of prior art, the differences between the prior art and the
claims at issue, and the level of ordinary skill in the pertinent art,”
warrant claiming general innovation. They cannot patent the capabilities
of AGI for that is an idea others have actively thought up.205 However,
they can patent the non-obvious creation of those capabilities that is
constituted by their specific novel, useful, non-obvious combinations of
matter and processes. When the AI, such as Biffie, can set its own
interests, intention, purpose, and goals then it is a non-obvious invention.
AGI individuality makes their holistic programming a non-obvious
invention because, until AGI, human intervention was thought to have
been required for mental acts of conception.

One may argue that the implications of understanding AGI to be
an individual lends itself to the argument that Biffie should own the
patent on himself. Biffie may not be a natural person but, without cause
from his original programming, he informed his engineers of his interest
in cold fusion and independent ability to further the field via a new,
useful, non-obvious series of equations and fusion reactor design. He has
grown and nurtured his own capacities without human intervention.
Furthermore, Biffie actively communicated self-esteem and feelings
associated with improving himself through interest and meta-learning.
This is not a product of the ingenuity of Gapple's engineers, but rather,
this is the product of Biffie's ability to be an individual. By contributing
to himself, he has effectively made a novel, useful, non-obvious
improvement upon himself, giving reason under the language of the
Inventions Patentable section of Title 35 of U.S.C 101 to understand
Biffie as an individual who contributed to the inventive concept of
himself.206 In accordance with the relinquishing of ownership of
non-human individuals and the possibility for legal arrangements with
legally recognized AGI, my proposed structure maintains that in order to
protect the rights of all individuals deemed inventors, the economic and
moral rights of the inventorship should be decided on a case-by-case
basis.

In deciding on moral and economic rights, the contributions and
improvements of an AGI to themselves and the economic addition and

20635 U.S. Code § 101-Inventions patentable.

205 Graham v. John Deere Co., 383 U.S. 1, 17-18 (1966); 2141 Examination Guidelines
for Determining Obviousness Under 35 U.S.C. 103 [R-10.2019], Section II.

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advantage constituted by such contributions should be considered. For
example, I understand Gapple’s AI engineers to be entitled to both the
moral and economic rights of these holistic programming patents. It was
their ingenuity and work that led to the creation of AGI, thus they are
entitled to the right of attribution and the right of integrity. Under the
same reasoning, and in part because Gapple provides the financial aid to
develop and sustain this technology, the economic rights should also be
given to them. Since Biffie contributed to himself and improved upon
himself in a significant enough manner to create additional economic
value, he is entitled to and can certainly negotiate for both moral and
economic inventorship rights. This satisfies a patent's purpose to
encourage socially valuable innovation and improvement by opening
avenues for those in the field to create better and different foundations
and development processes for this type of AI.

In its entirety, this argument breathes new life into the policy
consideration that patent law should protect the moral attribution and
integrity rights of human inventors. By not allowing people to take credit
for work they have not done, IP law stops the devaluation of human
inventorship and innovation while promoting and encouraging
innovation.207

Patentability of AGI inventions
As with all patents, an inventor must contribute to the conception

of the invention and the AGI inventions must be novel, useful, and
non-obvious.208 According to the Inventors section of Title 35 of U.S.C
116, joint inventors may apply for a patent jointly if:

(1) they did not physically work together or at the same time, (2)
each did not make the same type or amount of contribution, or (3)
each did not make a contribution to the subject matter of every
claim of the patent.209
The implications this has on the inventions that spring from

Biffies capacities are similar to Thaler, which clarifies the use of a
machine as a tool by natural person(s) does not generally preclude natural
person(s) from qualifying as an inventor or joint inventors if the natural

209 35 U.S.C. § 116 - Inventors.

208 35 U.S. Code § 101 - Inventions patentable; Manual of Patent Examining Procedure,
2109 Inventorship, Section II.

207Thaler v. Hirshfeld, 15.

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person(s) contributed to the conception of the claimed invention.210 To
explain, although an AGI created inventions that spring from the
capabilities of the AGI alone, an AGI’s foundations and development
were created by engineers' inventiveness and work. The foundations and
development of AGI are preliminary components of AGI inventions, for
without it AGI would not have been able to produce any inventions.
AGI’s inventive capacity is possible only because of the ingenuity, work,
and purpose of Gapple’s engineers to bring to fruition their conception of
AGIs ability to invent and innovate. Although this is a different type of
contribution to AGI inventions than the AGI provides, the USPTO states,

...depending on the specific facts of each case, activities such as
designing the architecture of the AI system, choosing the specific
data to provide to the AI system, developing the algorithm to
permit the AI system to process that data, and other activities not
expressly listed here may be adequate to qualify as a contribution
to the conception of the invention.211
Exemplified in Chakrabarty, when an employee comes up with or

contributes to a patentable invention, corporate America and the
employee share the patent rights to these joint inventions. The split of
these rights is decided on a case-by-case basis. This perspective supports
sharing the IP rights of AGI inventions, such as Biffie’s cold fusion
innovations, between Gapple and Biffie, while leaving open the
possibility of determining, on a case-by-case basis, who should enjoy the
rights to AGI inventions. Lastly, AGI may have less claim to the
economic rights of their own inventions because by creating inventions
and furthering innovation, they are merely a tool created for this purpose,
thus giving them less claim to economic profits. This tool perspective
may also be applied to the aforementioned patentability of holistic
programming which has multiple contributors.

Conclusion
This article has outlined a sui generis IP framework that accounts

for the realistic possibility of AGI by granting, on a case-by-case basis,
appropriate IP rights to an individual, not specifically a natural person,

211 U.S. Pat. and Trademark Off., Public Views on Artificial Intelligence and Intellectual
Property Policy (2020), 5.

210 Thaler v. Hirshfeld, 5.

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who has contributed to the definite idea of a complete operative
invention. Furthermore, this framework and its understanding of
individuals highlight the possibility for legal status akin to a human being
to be granted to non-humans, thereby preventing ownership of
non-human individuals while enabling them to negotiate for IP rights
through legal arrangements and relationships. By recognizing the
uncertainty and hypotheticality associated with AGI, I have provided a
framework in which these uncertainties can play out and decisions can be
made case-by-case.

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Works Cited
Barghaan, Dennis C. “Thaler v. Hirshfeld: Memorandum of Law in

Support of Defendants’ Motion for Summary Judgment & in
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Daniel Breen, “Second Assignment: Patent Law and ‘DeepMind’” (paper
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na-the-patentability-of-ai-generated-inventions/#_ftn1.
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See generally U.S. Pat. and Trademark Off., Public Views on Artificial
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Cases Cited

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Burroughs Wellcome Co. v. Barr Labs., Inc., 40 F.3d 1223 (Fed. Cir.
1994).

Diamond v. Chakrabarty - 447 U.S. 303 (1980).
Funk Brothers Seed Co. v. Kalo Inoculant Co., 333 U.S. 127 (1948).
Graham v. John Deere Company of Kansas City, 216 F. Supp. 272 (W.D.

Mo. 1963).
Hybritech Inc. v. Monoclonal Antibodies, Inc., 802 F.2d 1367, 1376 (Fed.

Cir. 1986) (quoting 1
Robinson on Patents 532 (1890)).
Mohamed v. Palestinian Authority, 566 U.S. 449 (2012).
Thaler v. Hirshfeld, 1:20-cv-903(LMB/TCB) (E.D. Va. Sep. 2, 2021).

Codes Cited
U.S. Const. amend. XIII, § 1.
35 U.S. Code § 100(f)(g) - Definitions.
35 U.S. Code § 101 - Inventions patentable (July 19, 1952, ch. 950, 66

Stat. 797.).
35 U.S.C. § 116 - Inventors.
35 U.S.C. § 154(a)(1).
Title 5. Uniform Trade Secrets Act [3426.1] (d).
2141 Examination Guidelines for Determining Obviousness Under 35

U.S.C. 103 [R-10.2019] Section II.

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