India: Is It Possible To Patent Artificial Intelligence?

Last Updated: 2 January 2019
Article by Sharmeen Shaikh

Since eons, humans have tried to create convenience. Be it the kindling of a fire or the development of the technology of a smart phone that detects your location and is linked to your bank account, humans have constantly tried to create a technology, that stands on par with the functioning of normal human brain.

However, in the bid to develop convenience, we have now outdone ourselves and hence, there is a constant endeavour to develop a substitute to a human brain and the understanding that it holds. Humans are considered the best creation. And to recreate and sustain this masterpiece unnaturally, is called the development of an artificial intelligence.

John McCarthy, a computer scientist, coined the term "Artificial Intelligence." In his article 'Ascribing Mental Qualities to Machines,' he states that, "Machines as simple as thermostats can be said to have beliefs, and having beliefs seems to be a characteristic of most machines capable of problem-solving performance." Also, in the year 1966, McCarthy and his team at Stanford wrote the first ever computer programme, which was designed and used to play the game of Chess with his counterparts in the Soviet Union, wherein McCarthy's teams lost two games and drew two games.

Thus, the emergence of artificial intelligence, or synonymously knows as the AI, is rapid, which is further fuelled by the constant need to develop a technology that is as smart and as efficient as a human. The purpose is to reduce the burden of mankind and to provide an apt and a cost-effective assistance. A machine or a robot would relatively take a lesser amount of time to absorb and implement instructions and would give double the amount of efficiency, as compared to a human. But more importantly, it is to create something that imitates or thinks like a human.

It is essentially and inter-disciplinary science, involving branches such as sociology, biology, maths, psychology, philosophy, computer science and neuroscience.

Just in the past few years alone, it sparked front-page news stories when AI machines beat human Jeopardy champions, defeated the best human Go player in the world, acted undetected for months as a teaching assistant to students at the Georgia Institute of Technology, reported on the 2016 Rio Olympic games, and got retained as a bankruptcy lawyer. In the light of such advancement, one cannot ignore the importance, and maybe, the brilliance of AI, and the gradual dependence of the human society on machines.

Furthermore, in the year 2017, Mayfield Robotics, which was initially a part a part of the Bosch Startup Platform, announced the launch of CES 2017,also knows as Kuri,  a home robot which was demoed and celebrated at TED, SXSW, The Aspen Ideas Festival, The Economist Innovation Summit, and many other high-profile events. Kuri was launched as an intelligent robot, which would be a useful assistant at home. You could them out in the wild, or helping disabled people with routine tasks. It was designed to be an all-purpose companion, almost like a member of a family.

The development of AI has a very obvious by product: the protection and the regulated use of the invention or the techniques that promote such an invention. But, can AI be truly protected via the existing Patent laws? If so, who gets the patent, the owner, inventor, programmer or the AI itself?

Alternately, in case of the eligibility of granting a patent to a computer-generated invention, there are three basic scenarios that would be probable:

  • The computer would be granted the patent
  • The owner of the computer would be granted a patent
  • The person/s who have assembled the hardware in such a way so as to generate an invention, would be granted the patent

One might also state that since the AI isn't a human, it isn't eligible to apply for a patent. However, the laws recognise the existence of a legal person, apart from a natural person.

The procedure to gather a patent for the AI would be accessible. But the burning question is, is it really possible to patent a technology, which is subject to the dynamic nature of the society? An entity like an AI is mandated by the necessity to change and evolve with the changing times and attitudes of humans. It would be a difficult task to patent every single software that facilitates a change, even if we predict the changes that humans as a society or as intellectual beings, may undergo.

But after all, who gets the patent? An inventor has put his/her heart and soul in the invention. But, the programmer of the invention has an equally important role to play. Also, can a person, who purchases or lawfully owns the patent, thereby also owning the technology, be excluded from granting of the patent? Last, but not the least, the AI itself. Since the AI is infused with a programming and function, similar to that of humans, can we consider granting the patent to the AI itself? After all, it now possesses the understanding to demarcate between being an individual self and belonging to something or someone else. Would it be injustice, if the AI was considered an object, not a parallel human?

Another issue at hand would be that if an AI commits a breach, whether of law or rules prescribed for the human society, would it be held individually responsible for its actions, and penalised? If not, who would be vicariously liable?

One might argue that since the IP laws and rights were designed to protect and benefit the inventors and since an invention is a creation of mind, it implies the presence of a human and excludes all other categories. However, several IP Laws were drafted before the emergence of the AI on the global scenario and the prerequisite of a patent to be granted only to a human being per se isn't mentioned explicitly. The World Intellectual Property Organization's (WIPOs) definition of Intellectual Property talks about creations of the mind but does not specify whether it must be a human mind. But, despite the encompassing nature of the definition, and several laws that support and encourage this change, it remains a difficult task to identify, let alone grant, the true owner of the rights and benefits of a patent.

 Conclusion

In the above scheme of things, it is safe to say the concept of AI, be it ever evolving, is yet to be in tandem with the legal and other aspects of the society. It is yet to gain compatibility with the patent laws on a global level.  Apart from encouraging creativity, there should be a cohesive effort to regulate and organise the growth of this humongous field. The idea of creating a humanoid or the concept replacement of human intelligence with machines and bots may sound futuristic and brazen, but will ultimately have a lasting impact on the mankind as a whole.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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