AI Patents and the Self-Assembling Machine

105 Minnnesota Law Review Headnotes 301 (2021)

22 Pages Posted: 9 Jul 2020 Last revised: 6 Apr 2021

See all articles by Dan L. Burk

Dan L. Burk

University of California, Irvine School of Law

Date Written: June 16, 2020


Legal scholarship has begun to consider the implications of algorithmic pattern recognition systems, colloquially dubbed “artificial intelligence” or “AI,” for intellectual property law. This emerging literature includes several analyses that breathlessly proclaim the imminent overthrow of intellectual property systems as we now know them. Indeed, some commentators have prophesied the demise of patentable innovation under the influence of AI research and development tools.

Although AI systems pose fundamental challenges to the many areas of law and legal institutions, careful consideration suggests that intellectual property generally, and the patent system particularly, encompasses sufficient flexibilities to address AI innovation. In many cases, previous accommodation of biotechnology within the patent system points the way similar accommodation of AI tools. However, the incorporation of AI innovation into patents reveals a significant gap in patent doctrine regarding issues of causation, which deserves resolution quite apart from the unnecessary furor over the intersection of AI and patent doctrine.

Keywords: AI, Patent, Artificial Intelligence, Machine Learning, Intellectual Property, Algorithm, Obviousness, Causation, Inventor, Invention, Innovation

JEL Classification: O31, O32, O33, O34

Suggested Citation

Burk, Dan L., AI Patents and the Self-Assembling Machine (June 16, 2020). 105 Minnnesota Law Review Headnotes 301 (2021), Available at SSRN:

Dan L. Burk (Contact Author)

University of California, Irvine School of Law ( email )

4500 Berkeley Place
Irvine, CA 92697-1000
United States
949-824-9325 (Phone)

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