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When artificial intelligence intersects with patent law, critical issues like AI’s ability to be an inventor, rights ownership, and the challenges of patenting AI creations arise.
In the rapidly evolving landscape of our world, artificial intelligence (AI) has progressively taken on a central role, with its capacity to facilitate inventions becoming more apparent. This fascinating development necessitates some critical legal considerations, especially concerning the patent system.
This article explores some of the most contentious issues, including recognizing AI as an inventor, owning moral and property rights resulting from AI-related inventions, and the potential challenges and advantages of extending patent protection to inventions autonomously generated by AI.
A significant aspect is the question of legally recognizing AI as an inventor. The European Patent Office (EPO) recently ruled on this issue. Two patent applications were rejected by Steven Thaler, the creator of an AI system called DABUS (Device for Autonomous Bootstrapping of Unified Sentience). These applications were part of the Artificial Inventor Project, which aims to claim intellectual property rights for AI-created inventions without inventive human contribution.
Specifically, the EPO decided that nominating DABUS as an inventor contravened specific provisions of the European Patent Convention, which, in their opinion, assumes that an inventor is a natural person. Additionally, they concluded that the applicant could not be regarded as the machine’s legal successor, given that the machine lacks legal personality and cannot transfer any rights.
Other authorities have made similar rulings, notably the U.S. Patent Office (USPTO) and the U.K. Patent Office (UKIPO). However, “DABUS” patent applications have succeeded in South Africa and Australia, where AI is now potentially recognized as an inventor.
The ownership of moral and property rights in inventions created by AI remains a complex issue, with no consensus to date. Moral rights traditionally belong to the inventor, suggesting they should, by default, be owned by the AI. However, it is not self-evident that an AI system lacking legal personality could claim such rights. It is also necessary to determine the ownership of property rights arising from the patent, with potential candidates including the machine’s owner, user, programmer, or the individual who developed its algorithm.
The idea of extending patent protection to AI-generated inventions carries numerous implications. For instance, satisfying the legal requirements for patentability, particularly novelty and inventive step, may become more challenging. “Novelty,” as defined by the law, refers to an invention that does not already exist in the state of the art when the application is filed. With AI having access to an ever-increasing amount of information and thereby broadening the scope of the state of the art, assessing an invention’s novelty could be more difficult. However, simply having more information does not automatically imply an expanded state of the art; the recipient must also be able to comprehend such disclosed knowledge.
Furthermore, considering the inventive step, which requires an invention not to be obvious to an expert in the field given state of the art at the time of application, the parameters might need reconsideration with AI-generated inventions in light of the AI’s capabilities. Assessing a so-called “sufficient description” would also pose a challenge. The patent system relies on a mutual agreement between the inventor and society; the exclusive rights granted to the inventor must be balanced by clear and comprehensive disclosure of the invention’s features to benefit the community.
However, AI inventions might result from a process not necessarily understandable to humans, making their clear and comprehensive descriptions difficult.
On the flip side, refusing to recognize AI-generated creations’ patentability might have disadvantages. For instance, an invention could still be created by artificial intelligence but not declared as such, allowing unrelated individuals to claim credit for it. Additionally, denying patent protection to AI-generated inventions might increase reliance on trade secret protections, reducing the knowledge shared with the broader community.
It’s crucial to question whether our current patent legal framework is sufficiently equipped to address the myriad of questions raised by this topic. There’s hope that the significant implications of technological advancements will be considered, particularly within policy debates, to facilitate an appropriate regulatory response.
The issue of AI’s involvement in the creation process and its implications on patent law brings about numerous complex considerations. The number of inventions generated through AI may increase as AI continues to develop, making this a pressing issue.
The recognition and treatment of AI-created inventions remain inconsistent across various jurisdictions, suggesting an international legal consensus is needed. There should be a balanced approach to ensure that technological progress is not hampered while also providing adequate protection for inventors and stakeholders involved in the development and use of AI.
The myriad of questions raised by the issue underscores the need to re-evaluate the patent legal framework. Is it possible that the concept of ‘inventor’ needs to be redefined in the age of AI? Should we reconsider the criteria for patentability in the context of AI-created inventions? To whom should moral and property rights belong? These are all critical questions that need to be addressed in the context of AI and patent law.
The development of AI and its increasing role in the invention also necessitates a critical re-evaluation of our understanding of knowledge and the patent system. As AI systems become more advanced and can generate inventions autonomously, our traditional views of novelty, inventive height, and sufficient description may need reconsidered. We must ensure that the patent system continues to encourage innovation while providing adequate protections for those who contribute to the development and use of AI technologies.
In conclusion, the intersection of AI and patent law poses significant challenges. However, by confronting these issues head-on and adapting our legal frameworks accordingly, we can facilitate the continued advancement of AI while also protecting the rights of inventors and stakeholders. The implications of AI in the invention process warrant careful consideration and thoughtful regulatory responses to meet future challenges.
On a similar issue, the following article can be of interest “Can generative artificial intelligence rely on the copyright text and data mining (TDM) exception for its training?“.
Authors: Laura Gastaldi, Massimiliano Tiberio, Camila Francesca Crisci
Photo by Steve Johnson on Unsplash
