Can an invention made possible by artificial intelligence be patented?

Courts around the world have ruled that AI cannot invent things – only a human can. However, some experts argue that sooner or later intellectual property law will have to reckon with AI.

In 2020, the United States Patent and Trademark Office (USPTO) denied a patent application filed on behalf of DABUS, an artificial intelligence (AI) system.

The items for which DABUS applied for patents were a food container with a fractal surface to help with insulation and stacking, and a flashing light to draw attention in emergencies. They were submitted by Stephen Thaler, a physicist and founder of Imagination Engines, a company that researches and develops artificial neural networks like DABUS.

Thaler requested that DABUS be a “creativity machine” recognizing the “novelty and importance of the present invention”. However, in its final opinion, the USPTO ruled that “patent laws require that an inventor be an individual,” citing previous federal decisions on language surrounding the nature of the invention.

Then, earlier this month, in a parallel case involving a copyright issue with Thaler’s AI system, a U.S. federal district court upheld a 2021 decision confirming that AI systems, according to the letter of the patent law, inventions cannot be patented because they are not human beings.

Thaler plans to appeal the district court’s ruling, with his attorney criticizing the court’s “narrow and textualist approach” to patent law.

The DABUS case fundamentally changes the perception of intellectual property (IP) and shows what patent systems struggle with: If AI is responsible for an invention, can the machine then be patented?

“The DABUS case shows how AI will increasingly challenge intellectual property rights. AI will increasingly be used to support invention,” said Toby Walsh, a Laureate Fellow and Scientia Professor of AI at UNSW Sydney.

“IP law has always struggled to keep up with technology. Until now, she had to deal with the challenges of genetic engineering. It now has to deal with the challenge that AI poses,” he said TRT world.

The DABUS case marks the first time that an AI system has been named as the sole inventor – a dilemma facing lawmakers around the world when trying to consolidate international legal opinion on AI patent law.

Patents related to DABUS were also refused in the UK, Europe and Australia on similar grounds relating to the person, with the European Patent Office questioning who would enforce the rights granted to an inventor in such circumstances.

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While the DABUS case is the first time an AI system has been called an inventor, it is not the first time that AI has been instrumental in the innovation process.

In 2019, an antibiotic called Halicin was developed using a deep-learning algorithm that helped identify a chemical compound effective against drug-resistant strains of bacteria. It was derived from a pool of over 100 million molecules that fight against various pathogens.

“Halicin was originally intended to treat diabetes, but its effectiveness as an antibiotic was not discovered until the AI ​​was instructed to study a vast catalog of drugs that could be reused as antibiotics. So there is a mix of man and machine at play in this discovery,” Professor Walsh said in a press release.

In the case of DABUS, it is unclear whether the system is really responsible for the invention. Professor Walsh highlighted some of the challenges related to property rights in relation to AI-related inventions.

“There are a number of fundamental problems. Who owns the IP? It can’t be the AI. Is AI changing the nature of invention? At present, an invention must not be obvious to an expert at the cutting edge of technology,” said Professor Walsh TRT world.

For an invention to be patentable, it must meet a certain number of requirements standardized in the 1994 WTO Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS).

The first condition is that the invention is new or does not yet exist. Then it need not be obvious to a person experienced in the specific field of the invention. Finally, it must be fit for an industrial application or utility.

“But an AI could be much more powerful. Does this raise the bar for the obvious? And will patent offices be able to keep up with the speed that AI can invent?” Professor Walsh notes.

“Even if we accept that an AI system is the true inventor, the first big problem is ownership. How do you find out who the owner is? An owner must be a legal entity and an AI will not be recognized as a legal entity,” said Associate Professor Alexandra George, IP Law Specialist.

In an article for the science journal NatureCo-authors Professor George and Professor Walsh argue that governing bodies around the world need comprehensive legal reform to determine whether IP protection can be granted to AI systems and propose the design of a bespoke form of IP law called AI- IP that would be tailor-made to protect the inventiveness of the AI.

Rather than retrofitting old patent laws to accommodate emerging technologies like AI, a “distinct AI-IP doctrine has the benefit of being able to be tailored to the specific conditions in which AI creativity occurs,” they wrote.

“[Whereas] While patents are typically awarded to the inventor, lawmakers might choose to split the rewards from an AI-generated invention differently—perhaps between the AI ​​developer, the person directing the AI, and the owner of the data using it to train them.”

They suggest that an international treaty to regulate AI patents will be essential, much like the TRIPS agreement in regulating the use of designs, trademarks, copyright and other areas of intellectual property. “It would establish unified principles for protecting AI-generated inventions in multiple jurisdictions,” they added.

However, failing to create a legal framework for patenting AI-generated inventions will have an impact on attracting investment in cutting-edge industries.

“Funders and companies would have less incentive to do useful research with AI inventors if the return on their investment could be limited,” they said.

“Society could miss out on the development of valuable and life-saving inventions.”

Source: TRT World

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