The inability to patent AI creations can hit business investment

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

AI continues to revolutionize areas such as drug discovery. However, the law is struggling to keep up with this technological change, as can be seen in lawsuits filed around the world on behalf of the Dabus AI machine, an artificial neural network.

Stephen Thaler, a US-based artificial intelligence expert, filed a lawsuit in English courts last year against the UK Intellectual Property Office after it rejected two patent applications citing Dabus as the inventor of a food container capable of to change its shape as well as flashing light.

Thaler filed for a patent in the UK’s IPO in 2018. But the office rejected the application under the UK Patent Act 1977, which restricts invention to “individuals”. Thaler appealed his decision to the court, and last year the Court of Appeal upheld the UK’s IPO decision.

Courts in the United States and Europe have taken a similar view of Dabus (with some of these decisions being appealed).

However, the Federal Court of Australia ruled in July 2021 that Dabus could be considered an inventor for the purposes of Australian law. And in South Africa, the project successfully received a patent in which Dabus is named as the inventor. Then, in a further twist, the Australian decision was overturned by the Full Court of the Federal Court of Australia earlier this year.

Between 2002 and 2018, the share of patent applications to the US Patent and Trademark Office containing AI technology increased from 9% to almost 16%. So, if courts and governments decide that inventions made by AI cannot be patented, the consequences can be significant.

Without being able to profit from a patent, companies could choose to reduce their investment in AI or be more encouraged to keep inventions a trade secret, some lawyers suggest, depriving society of the benefits of new technologies.

Giles Parsons, a partner at Browne Jacobson, said the current patent law is not well equipped to meet the challenge of the fourth industrial revolution. “We need a new regime for a new era,” he said. But some lawyers also say AI is not yet at a stage where it can surpass human intelligence.

Noam Shemtov, a reader in intellectual property law and technology at Queen Mary University of London, notes that most artificial intelligence experts believe that this threshold will not be reached until 2075, so the current law is sufficient. “Therefore, there is no point in preparing the patent regime for such speculative developments at the moment,” he said.

Most of the responses to the October 2020 consultation from the U.S. Patent and Trademark Office agreed that the current AI could neither invent nor create without human intervention, and so existing U.S. intellectual property laws now apply to the evolution of AI.

However, some courts have begun to recognize AI’s contribution. Last year, the Federal Patent Court in Germany ruled that the inventor mentioned in the patent application must be a natural person, but the AI ​​system responsible for the main invention may be further named.

Copyright protection for works of art or music is another area of ​​IP that the legal world will have to contend with. The United Kingdom is one of the few countries that protects computer-generated works where there is no human creator. The “author” of a computer-generated work is defined as the person from whom the necessary measures are taken to create the work.

But some critics have argued that copyright protection for such works is excessive. They believe that copyright, with its roots in human authorship and creative endeavors, should apply only to human creations. The UK government has just completed a public consultation examining whether the law should be changed.

In the United States, the situation is different. The U.S. Copyright Office indicates that it will not register works of nature, animals, or plants, and provides other examples of works that it cannot register – including a mural created by an elephant and a song for which says it was created by the Holy Spirit.

AI has been added to the list. Earlier this year, she rejected an AI-generated picture titled Soon the entrance to paradise. Thaler said his ownership of the machine that created it made him a copyright owner, but the office said the image was not a “copyrighted work” because it required human authorship to achieve copyright protection in the United States. .

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