Today, Artificial intelligence (AI) is extensively used in variety of sectors and areas from drug discoveries to automotive (autonomous cars/driving technology) or transportation and communication. As stated by WIPO Director General, Francis Gurry in the introduction of "WIPO Technology Trends 2019; "Artificial Intelligence is a new digital frontier that will have a profound impact on the world, transforming the way we live and work"1
The AI system may actually be defined as 'disruptive' as it may process large amounts of data in short periods or determine a pattern from variety of data sets due to its continuously increasing computational capability. According to the information provided by WIPO in 2019, there are nearly 340,000 AI-related inventions and furthermore the number of scientific publications related to the AI systems are over 1.6 million. 2
As the AI systems are capable of advancing in a rapid and autonomous way, it has become difficult to follow or even understand the behaviours AI for humans, so that it has led human beings to fear and feel like under threat. This issue was addressed also in the report of "WIPO Technology Trends 2019: Artificial Intelligence"3
There is still no unified definition for AI. Nevertheless, in the European Commission final report, completed in September 2020 and called "Trends and Developments in Artificial Intelligence – Challenges to the Intellectual Property Rights Framework", a rather narrow definition for AI has been adopted by considering "systems that focus on solving concrete application problems"4. AI systems are defined as "'computer-based systems that are developed to mimic human behaviour' or 'a discipline of computer science that is aimed at developing machines and systems that can carry out tasks considered to require human intelligence with limited or no human intervention'."5
This definition reveals that as of today AI is accepted in its narrow sense. It is considered that the objectives for AI systems are given by humans and AI systems are used as tools for optimized ways in reaching to these goals. It is important to note that today it is still humans to recognize such outcomes reached through AI systems are in fact inventions under patent law.
The same approach is also followed on the European Commission Report dated February 19, 2020 and called "White Paper on Artificial Intelligence – A European approach to excellence and trust":
"While AI-based products can act autonomously by perceiving their environment and without following a pre-determined set of instructions, their behaviour is largely defined and constrained by its developers. Humans determine and programme the goals, which an AI system should optimise for."6
Therefore, under today's conditions and developments, the interaction between human and AI (used as a tool or autonomously) is inevitable. As the impact of AI systems in our lives increase, the new legal challenges come insight. One of the significant issues in 2020 and still today is 'inventorship of inventions made using AI'.
In DABUS cases, the patent applications claiming the AI system (DABUS) as an inventor were rejected by EPO7, USPTO8 and UKIPO9. In the refusal decisions, it is reasoned that AI systems do not have legal personalities, so that they cannot be named as 'inventors'.
DABUS decisions once again put forward the legal requirement of 'natural person' to be named as an inventor. Considering, AI still does not have any legal personality vested with legal rights and obligations, it shall not be recognised as an inventor or a (co) inventor.
This approach to the inventorship does not take into account the interaction between human and AI, and also disregards the possible intellectual contribution of AI systems to the inventions. Though, by considering the continuous advancement of AI systems, it is significantly important to assess and specifically address to the level and nature of the contribution of AI systems to the inventions together with human contributions. Otherwise, in the near future – or maybe even currently- inappropriate naming of inventors may raise new obstacles for patent systems and even discourage fostering innovations due to the risk of revocation of patents for revealing of inappropriate inventor(s).
Hartman, Christian, et al. "Trends and Developments in Artificial Intelligence – Challenges to the Intellectual Property Rights Framework- Final Report". European Commission. © European Union September 2020. Page 21.
4 Hartman, Christian, et al. "Trends and Developments in Artificial Intelligence – Challenges to the Intellectual Property Rights Framework- Final Report". European Commission. © European Union September 2020. pg. 21. The relevant paragraph pf the Commission Report is as follows; "Although existing definitions vary significantly, there is consensus that the current state of the art and its (at least) medium-term future are characterised by "narrow AI" – meaning "systems that focus on solving concrete application problems" – as opposed to "general AI" or "super intelligence". The Study Team shares this view."
5 Hartman, Christian, et al. "Trends and Developments in Artificial Intelligence – Challenges to the Intellectual Property Rights Framework- Final Report". European Commission. © European Union September 2020. Page 21. In this report, for "computer-based systems that are developed to mimic human behaviour" the following citation is provided as follows; "Josef Drexl et al., "Technical Aspects of Artificial Intelligence: An Understanding from an Intellectual Property Law Perspective," SSRN Scholarly Paper (Rochester, NY: Social Science Research Network, October 8, 2019),. Also, for "a discipline of computer science that is aimed at developing machines and systems that can carry out tasks considered to require human intelligence with limited or no human intervention" the following citation is mentioned; "WIPO, "Revised Issues Paper on Intellectual Property Policy and Artificial Intelligence" (WIPO, May 21, 2020), p. 3".
7 EP applications EP 18 275 163 and EP 18 275 174
8 USPTO application no. 16/524,350
9 UKIPO application no. GB1816909.4 and GB1818161.0
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