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People invent things – AI just helps, biotech IP expert tells Congress

Clear laws giving intellectual property rights to human inventors who use artificial intelligence will allow us to take advantage of the remarkable advances AI can bring to biotechnology, a biotech patent expert told Congress on April 10.

“Our patent law should support, not hinder, the responsible use of AI to achieve transformative results for the economy and human health,” said Claire Laporte, Ginkgo Fellow and former Head of Intellectual Property at Ginkgo Bioworks. “The last thing we should do is discourage scientists from using the best tools available to them.”

Laporte, whose company is a member of the Biotechnology Innovation Organization (BIO) Board of Directors, testified at a hearing hosted by the House Judiciary Subcommittee on Courts, Intellectual Property, and the Internet, “IP Protection for AI-Assisted Inventions and Creative Works.”

Laporte’s call for clear, workable patent laws was echoed at the hearing by Congress members, who noted the importance of the U.S. patent system.

 “One of the greatest threats that we have found in earlier hearings is, that, if in fact, we grant no protections for patents, trademarks, copyrights that are somehow produced by AI, then we could find ourselves dismantling a system that has made the United States the most innovative successful country in the history of mankind.” Subcommittee Chair Darrell Issa (R-CA) warned.  

Rep. Deborah Ross (D-NC), who represents the North Carolina Research Triangle, urged laws that enable AI as a tool.

“The use of AI in biotech, pharmaceutical, and medical research and development can help people who are suffering get help faster,” Ross said. “I firmly believe that IP protections should be extensive enough to incentivize investors to utilize new technologies like AI to accelerate the research and bring their innovations to market as quickly as possible.” 

Laporte’s testimony made the case that current and foreseeable AI technology is an important tool for improving the invention process. She cautioned policymakers against creating confusion about whether these inventions would be eligible for patent protection.

Why we need to support biotech innovation

Laporte noted the importance of ensuring that the biotech industry can innovate with the best tools possible, including AI.

“The U.S. government expects biotechnology to have ‘outsized importance over the coming decade’ in the context of geopolitical competition,” and both the European Union and China are seeking to increase their competitiveness and capacity in this area, she wrote.

Interest in biotech has been “motivated by advancements in the ability to ‘read, write, and edit genetic code, which has rendered biology programmable,’” she said.

Laporte’s company Ginkgo Bioworks has developed a platform that can use the digital code of DNA to “program cells like we program computers.” Ginkgo’s platform can automate bioengineering tasks using machine learning, enabling development of everything from gene therapies and enzymes to agricultural biologicals to industrial biosynthetic materials.

“Analysts at McKinsey Global Institute have estimated that programmed cells can be used to make up to 60 percent of the physical inputs to the global economy,” Laporte wrote.

Given the possibilities of AI in biotech, the United States should do everything it can to support it, according to Laporte. We can make remarkable progress in biotech, but we need policy that allows that to happen.

“The biological challenges ahead are hard, but we believe that the AI we and others are developing will be essential to making biology easier to engineer, with implications for economic growth, human health, and national security,” Laporte said. “Patent law and policy must encourage, not hinder, the development and use of AI in biotechnology R&D. The United States cannot afford to lag behind in our development of AI for biological research while other economies benefit.”

People, not machines, invent things

Claire Laporte of Ginkgo Bioworks testifies on Capitol Hill on April 10, 2024.

Before AI and large language models, Ginkgo operated its platform using sophisticated tools for statistical analysis. AI increased the sophistication of the platform, but it is still steered by humans and is still just a tool, unable to create anything by itself, Laporte said.

“AI must be guided and prompted by humans to create useful results. Humans are the sole inventors of AI-assisted biological inventions and will be for the foreseeable future,” she wrote.

Josh Landau, Senior Counsel for Innovation Policy at the Computer & Communications Industry Association, testified: “When a human creates an invention that either improves AI or applies AI as the solution to some kind of problem, it is already—and should remain—eligible for patent protection.”

The current U.S. inventorship law makes it clear that development of an invention must take place through “formation in the mind of the inventor,” and therefore can only occur in the human mind, Laporte testified.

Furthermore, since AI is a tool, it should be treated like any other tool. “The Patent Act expressly provides that ‘patentability shall not be negated by the manner in which the invention was made,’” Laporte said.

Despite the clarity in existing laws, guidance issued in February by the U.S. Patent and Trademark Office suggests that the possibility of treating inventions developed with AI differently from inventions developed by other means.

“Adding yet another hurdle to the patent process by subjecting patent applications to new analytical and disclosure requirements depending on which tools were used in making the invention can only hurt our global competitiveness in the long run,” Laporte warned.

Along with complicating an already-cumbersome process, adding questions about AI to inventorship will also create unneeded complexity in the litigation process.

“Our patent system is already groaning under the weight of complexity, and adding yet more will not improve our international competitiveness or encourage the progress of science and the useful arts. A patent system that requires extra steps and imposes extra burdens when applicants use AI will discourage the use of AI,” Laporte concluded. “We cannot cede our competitive edge in biotechnology to countries that appreciate the value of AI to create novel biological products.”