Intellectual Property RightspatentArtificial Intelligence vis-à-vis Patents: Understanding the Dynamics

PRELUDE 

Originally a machine was developed by a human being, as a device or an apparatus in order to do away with duplication of work at the cost of repetition. In the year 1984, when a science-fiction movie “Terminator” was released, it was depicted that intelligent and artificial beings can act and take decisions at their own, without any human intervention.

Such artificial beings were merely a fancy imagination and thoughtful representation of a fiction work until few years ago when technological progressions led to development of machines and gadgets that acted at their own. Thus, the concept of Artificial Intelligence (‘AI’) is no longer Martian to the general public and is out right there in public domain.

WHAT IS ARTIFICIAL INTELLIGENCE? 

AI is understood as a multi-disciplinary branch of science that aims to construct and create a smart machine which competes and functions at par with a human intellect. It engages into human like fashion and demonstrate abilities like that of a human being.

The multi-disciplinary branches like mathematics, neuron science, computer science contribute to the advancement and enhancement of Artificial Intelligence. With regard to introduction and adoption of AI, there are two facets:

1. Either, such adoption will bring a paradigm shift and will further boost the quality of human existence;

2. Or, progression of such advanced technology which acts and behaves like human may remove the existence and mark of humans from the earth.

ARTIFICIAL INTELLIGENCE v. INTELLECTUAL PROPERTY LAWS

The primary objective of IP system is to encourage innovation through new technologies and creative mechanisms which includes human creation as well as innovation created and developed by AI. However, there arises a doubt as to the ownership of the creation done by AI i.e. ownership concerning both, the data as well as the technology that are the pillars to any such creation.

However, creation and development of new technology is often followed by protection of Intellectual Property Rights (IPRs) and in the present scenario, patent appears to be the most effective form of IP Protection.

In order to understand the patentability of AI created innovations, it is imperative to realize that an innovation related to AI is not a single innovation but a set of comprehensive innovations. Usually, the basis of AI related innovations are in context of algorithms and computer programming however, the same does qualify for patent protection in India.

In India, the Patent Act, 1970 (‘the Act’) deals with patentability of inventions under the Act. Section 3(k) stipulates the non-patentability of mathematical and business methods, computer programmes per se. In other words, there exists an unconditional ban in India on the patentability of algorithms and computer programs unless they reflect the industrial applicability of the same along with novelty and non-obviousness of the innovation.

Another point of concern is that of non-obviousness of the innovation to the person skilled in the art i.e. in the field of AI, there is a likelihood that the innovation so made could appear to be obvious to the person skilled in the art which may outcast the patent protection of such an innovation. Further, as per the law of the land, patent protection is extended to the first and true inventor and the inventor must be a natural person.

Even, the European Patent Office (EUIPO), in January 2020, refused two patent applications that were filed and listed AI as the inventor of the innovation. The said applications pertained to “Food Container” and “Devices and Methods for Attracting enhanced Attention”. However, the EUIPO rejected the applications stating that the same “do not meet the requirement of the European Patent Convention (EPC) that an inventor designated in the application has to be a human being, not a machine”.

The aforementioned two applications were also filed by the “Artificial Inventor Project” that also filed national phase applications under the Patent Co-operation Treaty (‘PCT’) in seven other countries, including UK. Pursuant to such filing, the UK Patent Office also rejected the applications on the ground that “there appears to be no law that allows for the transfer of ownership of the invention from the inventor to the owner in this case, as the inventor itself cannot hold property.“

Thus, it is as clear as day light that AI cannot be granted intangible rights and there comes the challenging question of determining the rights of ownership as to the originator of such an idea i.e. the intellect behind such an inception. For one to claim his invention, one ought to contribute to its conception to be an inventor.

It is an established fact that for creating and developing a mechanism of AI, human intellect and involvement is indispensable. AI may act, behave and learn like a human being however, as an innovator, natural person is required for listing the name of an inventor.

Thus, there arises an issue with regard to grant of patent i.e. whether patent can be granted an “electronic person” thereby distinguishing it from a “natural person”? In other words, an electronic person may be considered as an inventor and the legal entity or a company ascribing ownership over the same, may be given to the company. Whilst the patent laws across the globe extends and confers protection of patent only to a natural person and not to an electronic or a legal person.

ARTIFICIAL INTELLIGENCE vis-à-vis IPR: FUTURE PERSPECTIVE

The advent of 21^st century, has marked and established the extensive use of electronic gadgets in every single object that has developed across the globe. Right from dancing toys to anthropological robots and from computer controlled cars to nuclear reactors, next in line is making electronics and technology intelligent and brainy. This rare combination of simultaneous existence of human and technology in the form of AI, will act as a turning point in the economic development of the world at large.

However, at this stage, it is imperative that the existing IP system be modified by issuing guidelines and a liberal approach may be adopted in order to safeguard such innovations by arriving at a framework which synchronizes the IP protection in light of the invention made by AI systems.

Thus, it is the need of the hour wherein current issues regarding AI ought to be addressed in the most effective manner. The present contradictory site of AI mechanism in relation to IP laws stresses over the need to recognize the creations and inventions made out of AI system. Furthermore, anticipating the functions of AI systems without any human intervention requires a concrete protection of such inventions.

Therefore, a uniform treatment of the AI mechanism will certainly act as a positive step and act as a motivating factor in development of new inventions. All the member nations of multilateral agreements ought to recognise the paradoxical situation of AI mechanism, by bringing an amendment to TRIPS.

However, the actual problem lies at a point where the implementation of AI mechanism vis-à-vis IP system is to be given effect to but if the same is executed with a well-planned strategy, it will certainly give a leap in the field of inventions in AI and IP laws in the near future.

CONCLUSION 

It is a known fact that the existing laws and the changes that are looked forth needs to be bridged in order to give acceptance to the inventions through AI mechanism. Thus, the present situation of AI under the umbrella of IPRs is stimulating as acknowledgement and recognition of work done by AI is a way forward for the development of world economies but the implementation of the same at the grass root level is thought provoking.

The existing patent laws recognize an inventor as a natural person only but with the advancement of technology in the 21^st century, the time has come wherein strong AI or super intelligent devices that behave, act and learn like a human being ought to be given a place in the existing patent system.

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