The inability to obtain patents on AI creations may hurt business investment

Courts around the world are increasingly grappling with the complex question of whether artificial intelligence technology can be treated in law as an “inventor”.

Artificial intelligence continues to revolutionize fields such as drug discovery. However, the law is struggling to keep up with this technological change, as evidenced by the lawsuits filed around the world on behalf of the artificial intelligence machine Dabus, an artificial neural network.

Stephen Thaler, a US-based artificial intelligence expert, filed a legal challenge in English courts last year against the UK’s Intellectual Property Office after it rejected two patent applications named by Dabus as the inventor of a shape-shifting food container, as well as a flashing light.

Thaler submitted patent applications to a UK public offering in 2018. But the office rejected the application under the British Patent Act 1977, which limits the invention to “natural persons”. Thaler appealed her decision to the courts and last year to the Court of Appeals supported UK IPO decision.

Courts in the United States and Europe have taken a similar view of Dabbous (with some of these rulings appealing).

However, the Australian Federal Court ruled in July 2021 that Dabus could be considered an inventor for purposes of Australian law. And in South Africa, the project succeeded in obtaining a patent listing Dabus as an inventor. Then, in another development, the Australian ruling was overturned by the Full Court of the Australian Federal Court earlier this year.

Between 2002 and 2018, the share of patent applications to the US Patent and Trademark Office containing AI technology grew from 9 percent to nearly 16 percent. Therefore, if courts and governments decide that AI-made inventions cannot be patented, the implications could be significant.

Some lawyers suggest that without being able to benefit from a patent, companies could choose to reduce their investment in AI or be more incentivized to keep inventions as trade secrets—thus depriving society of the benefits of new technologies.

Giles Parsons, partner at the law firm Brown Jacobson, points out that current patent law is not adequately equipped to deal with the challenge of the Fourth Industrial Revolution. “We need a new system for a new era,” he says. But some lawyers also say that AI has not yet reached the stage where it can surpass human intelligence.

Noam Shemtov, a reader in intellectual property and technology law at Queen Mary University of London, notes that most AI experts believe this threshold will not be reached until 2075, so current law is sufficient. “Therefore, it does not make sense that the patent system at present should prepare for such a speculative development,” he adds.

Most responses to an October 2020 consultation by the US Patent and Trademark Office agreed that current AI cannot be invented or composed without human intervention, and therefore current US intellectual property laws already address the development of AI.

However, some courts have begun to acknowledge the contribution of artificial intelligence. Last year, Germany’s Federal Patent Court ruled that the inventor named in a patent application must be a natural person — but the AI ​​system responsible for the underlying invention could also be named.

Copyright protection Artistical works Or music is another area of ​​intellectual property that the legal world has to deal with. The United Kingdom is one of the few countries that protect computer-generated works where there is no human creator. The “author” of a computer-generated work is defined as the person by whom arrangements are made for the creation of the work.

But some critics argue that copyright protections for such works are excessive. They believe that copyright, with its roots in human authorship and creative efforts, should apply only to human creations. The UK government has just completed a public release Consultation Examine whether the law needs to be changed.

The situation is different in the United States. The US Copyright Office makes it clear that it will not register works produced by nature, animals or plants and gives other examples of work it cannot register – including a mural created by an elephant and a song said to be Created by the Holy Spirit.

AI has been added to the list. Earlier this year, an AI-generated panel titled Modern entrance to heaven. Thaler claimed that ownership of the machine he made made him a copyright owner, but the office said the photo was not a “work of authorship” because it required human copyright to gain copyright protection in the United States.