(Pre)Configured and (Pre)Ordered: The Challenge of Human–AI Constructs Through Patent Law’s Inventor

Abstract

At some point in the technological development of artificial intelligence (AI), a human–AI construct will reach the point at which it could be recognised as an inventor for the purposes of patent law. Yet this task of ordering, of establishing precise relationships between entities on a spectrum, overlooks the more radical challenge that human–AI constructs pose to both intellectual property and law more generally. Would the human–AI construct attain the status of inventor through its capacity (inventiveness) or through its humanity? Does the answer to this question shift how we order the human–AI construct in the context of patent law? Seeking to partially dissolve (rather than resolve) the question of appropriate ordering, this article suggests that AI has the potential to fundamentally obliterate the order itself by exposing how law relies on the temptation of an imagined – and distinctly human – sovereignty. It demonstrates this by analysing human–AI constructs in intellectual property through the concept of phantasm drawn from the work of Derrida and Butler. While the article focuses specifically on an intellectual property setting, and the concept of ‘inventor’ in particular, the conclusions are likely to apply to law more generally.