In an era where generative artificial intelligence can craft original artwork, generate codes, construct symphonies, videos or animations based on prompts and even formulate personalised treatment plans based on the medical and genetic history of the patient- A pivotal question comes to the forefront. Is AI capable enough to make inventions on its own? And if the answer to this question is no, then who actually owns the creation so made? With generative AI coming in picture and pushing through the limits of creativity and innovation the intersection of law with technology is creating new challenges across the globe. The emerging trends in AI that claims to make our works easier is also somewhere giving rise to new challenges and setbacks. AI is creating new advancements and technological know-how for us at an unprecedented pace. Yet, the question that lies behind it is that when the AI itself is the recipient, the creator and the provider then who holds the intellectual property rights? And here arises whole debate over the patentability of Machine intelligence driven inventions and discoveries out there.
In an era where generative artificial intelligence can craft original artwork, generate codes, construct symphonies, videos, or animations based on prompts, and even formulate personalized treatment plans based on the medical and genetic history of the patient- A pivotal question comes to the forefront. Is AI capable enough to make inventions on its own? And if the answer to this question is no, then who owns the creation so made? With generative AI coming into the picture and pushing through the limits of creativity and innovation, the intersection of law with technology is creating new challenges across the globe. The emerging trends in AI that claim to make our work easier are also somewhere giving rise to new challenges and setbacks. AI is creating new advancements and technological know-how for us at an unprecedented pace. Yet, the question that lies behind it is that when the AI itself is the recipient, the creator, and the provider then who holds the intellectual property rights? And here arises the whole debate over the patentability of Machine intelligence-driven inventions and discoveries.
AI'S INFLUENCE IN INNOVATION AND INGENUITY
The World Intellectual Property Organization WIPO, a governing body and expert institution on IP rights, is proactively conducting research and discussions to develop a permanent solution for all these issues. Policymakers, legal professionals, and key stakeholders are debating whether current patent laws are enough to handle AI-generated inventions, and if not so then what are the possible reforms that could be brought in. Lately, agencies like those of the United States Patent and Trademark Office (USPTO) and theEuropean Union office (EPO) are taking the initiative to take cases under their purview on patentability related to inventions as artificial. As artificial intelligence emerges, there are legal issues about it that arise in trying to determine whether AI can be recognized as an inventor and what should be done about patent laws in such a drastic technological shift. Contemporary cases and discussions spotlight the largest obstacles in the definition of inventorship in this machine age. Traditionally, Patents were only limited to human inventions and discoveries but now the landscape of creativity is widening its horizons.
RECENT CASE SPOTLIGHT: AI PATENTS RIGHT UNDER SCRUTINY
Thanks to recent news coming out of Australia and South Africa relating to the patent application for Stephen Thaler's AI-generated invention, this debate over artificial intelligence and intellectual property has been talked about much lately. Stephen Thaler has invented an AI machine called the 'Device for Autonomous Bootstrapping of Unified Sentience' (DABUS) to create inventions. Thaler has made Managing IP's Top 50 most influential people in IP 2020.
Employing technological support law scholar Ryan Abbott and IP firms, Thaler has filed for international and national patent applications that referred to DABUS as an inventor. His applications indeed pose a threat to the conformist and conventional practice or expectation that only humans can be named as inventors in a patent application.
OBSTACLES IN PATENTING AI-GENERATED CONTENT
The amalgamation of AI in the inventive processes brings complex hurdles for the entire patent system most particularly affecting the non-obviousness standard, public policy aspects, and concerns related to thereof. The non-obviousness rule is one of the basics in patent law and it is there to ensure well in advance that patents are only given for discoveries or inventions that are not too obvious on the face of it to be someone else's work with an ordinary skillset in the particular area. Conventionally this skill was judged through the perspective and understanding of a human practitioner. But as the technology industry has witnessed growth at an alarming rate, the capability of AI to generate solutions that can go beyond ordinary human intuition and understanding very often complicates this entire process while making it complex for patenting.
AI systems can read through really vast databases in the blink of an eye that is capable enough to surpass human experts. This raises serious concerns concerning whether the imaginary "person having ordinary skill in the art" (PHOSITA) has now AI capabilities. The more serious issue is that as with time AI becomes more used in research and development, recent discoveries might seem too obvious therefore restricting the horizons of future innovations. And similarly granting patents raises few public policy issues concerning monopoly and innovation dynamics. Giving recognition to AI as an inventor could lift big companies and organizations with comparatively better technological know-how to come across as a single player in the market henceforth promoting monopoly. This could lead to a setback in healthy market competition reason being smaller corporations cannot meet the level of advancement of AI technologies. Moreover, if AI innovations are extremely protected, it could demotivate the potential inventors on the same level playing field to generate something new and similar, fearing violations or infringement.
AI AND PATENTABILITY: SHOULD WE EXPAND THE HORIZONS OR RESTRICT IT TO A CERTAIN LIMIT?
Three remarkable proposals have come concerning the adaptation of patentability and intellectual property rights to make a place for AI-generated inventions.
Below enumerated are the three proposals:
- Hybrid inventions
In this particular approach, the Artificial intelligence and the human behind the screen are considered to have worked in collaboration. It is a collaborative invention setup wherein both the AI and humans are given credit. Put simply, they are considered co-inventors who contribute equally and come up with some new invention or discovery. The drawback is that the current Intellectual property laws only recognize humans as inventors and to recognize AI as one of the co-inventors would take a lot of legislative reforms and efforts of law and policy makers. Another major issue is that determining the individual contributions of AI and the humans working in hand with it would be difficult.
- Accommodation of new IP categories
It suggests bringing in new and separate laws altogether for AI but similar to as mentioned above it would require legislative reforms and the introduction of new laws concerning AI. The new categories of IP for AI-generated inventions would require a careful definition of what qualifies for protection, the duration of protection for those rights, and how any rights would be enforced. In creating this framework, provisions should be made for balancing incentives for technological advancement against excessive granting of exclusive rights. Also, the other essential factor would be establishing international consistency. Differing laws between countries might create conflicting obligations and confuse businesses and inventors, all of which would be cleared up by coordinated global procedures to avoid loopholes and encourage innovation.
- AI as a discovery tool
This model perceives AI to be a tool with the same characteristics as CAD software rather than thinking of it as an autonomous inventor. The AI end-user is capable of holding inventorship rights provided they prove a significant contribution to the conception of the invention. Such an approach puts one in an easier legal position, as it would mesh with the recognized structures and safeguard the responsibilities of each party. However, with the progressive autonomy taken on by AI, distinguishing human contributions from AI-generated innovations could become a difficult task. The model may also underestimate AI's creative contribution as technology progresses, with consequences for how invention is conceived.
THE ROAD AHEAD OF AI AND PATENTS
The debate over AI-generated patents will not settle with a quick resolution; AI is stretching the limits of creativity and problem-solving, and consequently, the law has to keep pace. This will be quite a task because the right balance has to be struck between ensuring innovation's growth and benefitting this underpinned by accountability through ethical and economic considerations. Should we adapt the existing patent laws to accommodate AI's contributions toward this, or would this upset the very basic foundations of intellectual property? The answer may perhaps lie somewhere in a middle ground: redefining inventorship, coming up with hybrid models, or perhaps even setting up new and entirely different yards of protection for innovation that's a product of AI.
Nevertheless, whatever choice is taken, there is one sure thing: the cutting edge of technology and legal policy exists at the confluence point of AI and patent law. Our decisions today will give shape to the future of innovation, competition, and creativity.
What do you think? Should AI be acknowledged as an inventor, or should the creative contribution remain with the human manifestation?
REFERENCES
- USPTO (United States Patent and Trademark
Office)
- United States Patent and Trademark Office. (2024, January 18). USPTO issues inventorship guidance and examples for AI-assisted inventions. U.S. Department of Commerce. Retrieved from https://www.uspto.gov/subscription-center/2024/uspto-issues-inventorship-guidance-and-examples-ai-assisted-inventions
- Vidal, K. (2024, February 6). AI and inventorship guidance: Incentivizing human ingenuity and investment in AI-assisted inventions. United States Patent and Trademark Office. Retrieved from https://www.uspto.gov/blog/ai-and-inventorship-guidance-incentivizing
- EPO (European Patent Office)
- European Patent Office. (n.d.). Artificial intelligence. European Patent Office. Retrieved from https://www.epo.org/en/news-events/in-focus/ict/artificial-intelligence
- WIPO (World Intellectual Property
Organization)
- World Intellectual Property Organization. (n.d.). The story of artificial intelligence in patents. WIPO Retrieved from https://www.wipo.int/tech_trends/en/artificial_intelligence/story.html
- World Intellectual Property Organization. (2024). Patent landscape report – Generative artificial intelligence (GenAI). WIPO. Retrieved from https://www.wipo.int/web-publications/patent-landscape-report-generative-artificial-intelligence-genai/en/index.html
- CASE LAW
- United States Patent and Trademark Office. (2022). In re application of DABUS, decision on AI inventorship. U.S. Department of Commerce. Retrieved from https://www.uspto.gov/patents/initiatives/artificial-intelligence
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