Failure to patent AI creations could affect business investments

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

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

Stephen Thaler, a US-based artificial intelligence expert, filed a lawsuit in British courts last year against the UK Intellectual Property Office after dismissing two patent applications naming Dabus the inventor. a food container that can change shape, as well as a flashing light.

Thaler filed patent applications at the UK IPO in 2018. But the office rejected the application under the UK Patents Act 1977, which limits inventory to “natural persons”. Thaler appealed his decision in court and last year the Court of Appeals upheld the UK IPO decision.

Courts in the United States and Europe have expressed a similar opinion on Dabus (with some of these judgments challenged).

However, the Australian Federal Court ruled in July 2021 that Dabus could be considered an inventor for purposes of Australian law. And, in South Africa, the project successfully secured a patent listing Dabus as an inventor. Then, in a further twist, the Australian ruling was overturned by the full court of the Australian Federal Court earlier this year.

Between 2002 and 2018, the share of U.S. Patent and Trademark Office patent applications that contained AI technology grew from 9% to nearly 16%. So, if courts and governments decide that AI-produced inventions cannot be patented, the implications could be significant.

Without being able to profit from a patent, companies may choose to reduce their investments in AI or be more incentivized to keep inventions as trade secrets, some lawyers suggest, thus depriving society of the benefits of new technologies.

Giles Parsons, partner of the law firm Browne Jacobson, points out that current patent law is not adequately equipped to meet the challenge of the fourth industrial revolution. “We need a new regime for a new era,” he says. But some advocates also claim that AI is not yet at the stage where it can surpass human intelligence.

Noam Shemtov, a lecturer in IP and technology law at Queen Mary University of London, notes that most AI experts believe that this threshold will only be reached in 2075, and therefore the current law is sufficient. “So it doesn’t make much sense that the patent regime is currently preparing for such speculative development,” he says.

Most responses to an October 2020 consultation by the U.S. Patent and Trademark Office agreed that current AI could neither invent nor create without human intervention, and hence U.S. intellectual property laws. existing ones already face 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 named in a patent application must be a natural person, but it is also possible to appoint an artificial intelligence system responsible for the underlying invention.

Copyright protection of works of art or music is another area of ​​IP that the legal world will have to contend with. The UK is one of the few countries to protect 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 precautions are taken for the realization of the work.

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

The situation is different in the United States. The United States Copyright Office clarifies that it will not record works produced by nature, animals or plants and provides other examples of the work it cannot record, including a mural created by an elephant and a song said to have been created by the Spirit. Holy.

AI has been added to the list. Earlier this year, she turned down an AI-generated painting titled A recent entry into heaven. Thaler claimed that his ownership of the machine that created it made him the copyright owner, but the office said the image was not a “work of authorship” because it requires human authorship to gain protection of the copyright. copyright in the United States.

Leave a Comment

Your email address will not be published.