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The Ethical Considerations of Patenting Autonomous Weapons
February 6, 2019

By Thomas P. Gushue

Every aspect of day-to-day life is increasingly influenced by artificial intelligence and automation. Mundane household tasks such as setting the temperature on thermostats, brewing a pot of coffee to coincide with our morning routines, and other simple chores can now be performed by automation. (Google’s U.S. Patent 9,513,642: “Flexible functionality partitioning within intelligent-thermostat-controlled HVAC systems” and General Electric’s U.S. Patent 4,330,702: “Electronic control system for coffeemaker”).

Recently, more complex and consequential tasks associated with our vehicles, such as parallel parking, steering, or fully self-driving modes, are done autonomously by a series of computers. (Ford’s U.S. Patent 8,169,341 “Vehicle park assist system and method for parking a vehicle using such system”; Honda’s U.S. Patent 6,212,453 “Vehicle steering control system”; and Uber’s U.S. Patent 9,672,446 “Object detection for an autonomous vehicle”). These emerging technologies are not without real and ethical consequences that have sparked serious debates. For example, what choice does an autonomous vehicle make when presented with the options of either injuring the driver or running over a pedestrian to avoid an oncoming vehicle? Patented inventions often play a critical role in the decisions that must be made by these systems. Many autonomous vehicle patents focus on the associated sensors, processors, and algorithms that make these decisions. While autonomous vehicle issues are being debated, corporations such as Apple, Uber, Google, and the major automakers continue pushing forward with these technologies, which are properly patentable according to the patent laws. However, the debate is now switching to another area of technology: autonomous weapons.

Autonomous weapon systems, referred to by critics as “killer robots,” are not new. Aerial drones, which have become common, are generally understood to have some degree of automation that enables them to fly unassisted or with minimal human interaction. (IBM’s U.S. Patent 9,852,642 “Drone air traffic control and flight plan management”). Many patents have been issued for fully automated weapon systems that are capable of firing based on a sensor system and a “predetermined set of rules of engagement” stored in the system. (Electro Optic Systems’ U.S. Patent 7,210,392 “Autonomous weapon system). Owing to the “killer” nature of these systems, there is a growing debate over their necessity, their impact on innovation, and associated moral and ethical issues concerning their use.

Although there have been calls for an outright ban of these systems, there is currently no mechanism to restrict patent filings directed to these emerging technologies. In fact, some of these patent applications may be held in secret by the U.S. government due to national security issues under the Invention Secrecy Act. This issue is further complicated because autonomous weapons include many inventions with non-lethal uses. For example, the same sensor that detects the proximity of an enemy combatant may be equally beneficial in autonomous vehicles to detect a pedestrian.

There are very real world issues associated with any weapon of war. Although the 1975 Biological Weapons Convention banned the development of chemical and biological weapons, the U.S. Secretary of Army subsequently obtained a patent in 2003 (U.S. Patent 6,523,478 “Rifle-launched non-lethal cargo dispenser”) directed to a riffle-muzzle launched payload delivering projectile. The issued patent included a dependent claim that claimed an aerosol composition in the payload is “selected from the group consisting of smoke, crowd control agents, biological agents, chemical agents, obscurants, marking agents, dyes and inks, chaffs and flakes.” The United States encountered criticism for the “biological agents, chemical agents” claim limitation and subsequently filed a certificate of correction to remove this language from the issued patent. Critics asked whether removal of the offending language addressed the ethical question of inventing a delivery system for biological and chemical agents.

While the world engages in these debates, it is clear that patent filings will continue to provide a fascinating insight regarding where these emerging technologies are headed. The uncertainty regarding autonomous systems of all types is based on whether they can have ethical uses and whether the unethical uses can be effectively restricted.