INVENTORSHIP AND ARTIFICIAL INTELLIGENCE
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ARTIFICIAL INTELLIGENCE
Artificial Intelligence (“AI”) is proving to be a game-changer. John McCarthy, coined the term “Artificial Intelligence,” has defined it as “the science and engineering of making intelligent machines, especially intelligent computer programs.” The recent developments in programming technology shows that AI is being relied on increasingly. AI has the ability to produce innovative output which needs patent protection.
The current legal framework is inadequate as it doesn’t cater to the incoming rise in AI authorship or even inventorship. Many scholars around the world argue that reform is necessary. Reform in the legal framework can incentivise innovation and also credit the person who invests in the development of the AI itself.
The impact of the Industrial and Digital Revolutions has, undoubtedly, been substantial on practically all aspects of society. Unfortunately, most jurisdictions have not recognised AI generated works in any form either under copyright law or patents law, including India.
The Creativity Machine (CM) and WATSON are one of the earliest examples of computer based inventors. Overtime many more have come up. CM is a type of a computational paradigm that is believed to have come closest to emulating the fundamental mechanisms responsible for idea formation itself. The Creativity Machine generates new ideas through the use of artificial neural networks. The network connect themselves to form software without any human intervention.
STATUS OF AI INVENTORSHIP IN FOREIGN JURISDICTIONS
It is important to do a jurisdictional analysis in order to determine the current stand of most countries on Self-generated inventions by AI. It shall be noted that AI system may create an invention that meets the statutory requirements for patentable subject matter, thus, the subject matter of invention is not in under question. It is the rights and the responsibilities that come with a patented invention. In the event of an AI system receiving inventorship, how would they protect their rights and the invention from being exploited? Even if they are given legal personhood, they still cannot act independently. The question remains as to whether AI can be considered an inventor and whether it can be granted patent rights in that invention.
In Australia, their Patent act does not stipulate who may apply for a patent. However, Section 15 of the Patent Act allows an application for an invention to be granted “to a person who is the inventor; or would, on the grant of a patent for the invention, be entitled to have the patent assigned to the person; derives title to the invention from the inventor or a person or is the legal representative of a deceased person”. Under this provision the term “person” means any legal person. Thus, according to the definition provided AI is not considered a “person” or given the status of a legal person. Similarly, another important question that is closely attached to this topic is that AI cannot validly assign its rights or even relinquish them for that matter. Therefore, it cannot be listed as an inventor in Australia.
Now Rule 19(1) of the European Patent Convention (EPC) doesn’t require the inventor to be necessarily be a human, but it only serves the purpose of properly identifying the inventor.
The inventor must be a natural person as per the European Patent System. This is statutorily bound under Article 81 and Rule 19 of the European Patent Convention. In fact, in late 2019, the European Patent Office actually rejected AI ‘DABUS’ as the inventor of the two patent applications filed for the two inventions. He claimed that DABUS AI created these two inventions without any human intervention. However, the corresponding patent applications were also rejected.
The US takes a similar stance on the issue. AI cannot be considered an inventor because AI is not a natural person under the current US Patents law. According to the USPTO, the relevant statutory provisions governing patents consistently refer to inventors as natural persons. Thus, on a plain reading of the provisions precludes a finding. The finding is that the term “inventor” can refer to AI. The USPTO cited several Federal Circuit cases in order to establish the preceding stance that stated that only natural persons can become ort be considered as inventors.
In University of Utah v. Max-PlanckGesellschaft zur Forderung der Wissenschaften E.V., the Circuit rejected a claim that corporations could be considered as inventors. It was seen that the statute and its rules limited the scope of inventorship to natural persons, the USPTO ruled that AI systems can’t be credited as an inventor on a US patent.
The DABUS decision shows that “inventor” under current US patent law can only be a “natural person”. The notion that “a machine is not allowed to be named as the inventor in a patent application” was also thoroughly repeated in this case. Furthermore, this decision explained that granting a patent under U.S.C. Section 151 for an invention that covers a machine does not mean that the patent statues provide for that machine to be listed as an inventor in another patent application. This ruling follows similar stances adopted the UK Intellectual Property Office as well.
In the case of Mayo Collaborative Servs v. Prometheus Lab, the Supreme Court of United States explained that AI is the basic tool of scientific and technological work and thus creating monopolies on these through patents would obstruct and hinder innovation. It has been asserted that patents should not be granted on claims which are a mere replication of human activity and does not involve any inventive step.
China places similar restrictions on inventorship as does US. Under Rule 13 of Chinese Patent Law Implementing Regulations, “inventor” means “any person who has made creative contributions to the substantive features of an invention-creation”
Furthermore, the Examination Guidelines explain that the “inventor” shall be an individual. An organization can’t qualified to be “inventor.” Thus, an invention wholly created by AI cannot be patented since it would not qualify as an “inventorship” under Chinese patent laws. Human intervention is imperative.
AI SYSTEMS & INVENTORSHIP – POSITION IN INDIA
Position in India is also no different from China, US, Australia etc. Here as well AI systems are not given any rights resembling that of Inventorship.
AI Systems, even if recognized as legal persons in some parts of the world, have not yet universally been granted personhood. AI Systems cannot currently be named as inventors in patent applications under the current regime of India. In view of this, if AI technologies were provided with joint authorship then to certain extent they could have sought inventorship. There is a need for Sui Generis protection of AI Softwares. I believe India underestimates as the growth and reach of AI and is not investing in it adequately.
In view of the above, inventions that meet the essential criteria of the particular Act of a particular country, even if created by AI Systems it would not be barred from the scope of patentability. Neither of the provisions left any room for interpretation because it hasn’t been drafted liberally in neutral terms.
The statutes are extremely clear about its preference of inventors. However, the current regime does not recognize personhood of AI Systems. Until the time that this is expressly addressed, AI Systems cannot be designated as inventors in patent applications.
Traditionally, technological changes have generated tensions in the IP system. AI technology is no exception. With AI advancing in a fast pace, the roles of inventor are likely to become less clearly defined. This will challenge established notions of authorship and inventorship in copyright and patent laws. In that light, it may be a better fit to promote innovation in a world of AI-generated content. On the one hand, this does not distort commonly accepted legal principles. It offers a reasonable and proportionate incentive to human involvement in the innovation process that ultimately leads to AI-generated output.