Introduction:

A new type of artificial intelligence capability promises to multiply the innovative capacity and economic competitiveness of any firm that has access to it. Not the excessively discussed and much-hyped category of “generative AI,” but a more narrowly defined category of “innovative AI,” i.e., AI models capable of autonomously designing novel products or processes—new drugs, materials, computer chips, software processes, and much more. This Article foregrounds “innovative AI” as one type of AI capability for which guaranteeing broad access is especially important but particularly challenging. Identifying innovative AI as the next general-purpose technology and drawing on the lessons from regulating past general-purpose technologies such as electricity and telecommunications, this Article advances two claims. First, it argues that innovative AI—compared to other types of AI capabilities—presents specific access concerns and warrants a specific regulatory intervention. Although generic language applications such as ChatGPT quickly became widely available, field-advancing innovative AI capabilities risk remaining inaccessible without regulatory intervention. But failing to expand access to innovative AI would hinder innovation in many fields and enable the rise of a new class of technology gatekeepers—the “innovation gatekeepers.” As a first contribution, this Article calls for the careful analysis of which regulatory modalities would best guarantee access to innovative AI. This Article argues that treating innovative AI as a utility and subjecting it to access mandates—the most intuitive regulatory modality to adopt for expanding access to innovative AI—would prove both economically detrimental and administratively impracticable. Although regulators have ensured access to previous general purpose technologies through access mandates, they have faced repeated challenges that would prove insurmountable in the context of innovative AI. As a second contribution, this Article focuses future scholarship on finding viable alternatives to access mandates and suggests bolstering merger review.

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