A patent is an intellectual property right that is granted to a person who is the owner of any invention relating to a product or process, this right enables the owner of the invention to use and exploit the subject matter exclusively for a fixed period of time. This exclusive right granted by way of patent is granted in exchange for making the information regarding the invention public. By virtue of this right the patentee can prevent others from using, making, offering for sale, selling or importing the products that are patented and in case of a process then he can prevent others from using the process or using, offering for sale, selling or importing any product that was obtained from the process. The system of patents and patent law was created with a purpose of promoting research and development. The patents by way of incentives encourage the inventors and developers to come up with new inventions.
For an invention to be eligible for patent it must qualify the criteria of:
- Novelty: the invention must be something new, original and different from the ones that already exist
- Non-obviousness or an inventive step: the product or process seeking for patent must be inventive and shouldn’t be obvious for any person who is skilled in that area.
- Utility/ industrial applicability: the invention should serve a certain purpose and should be of some use.
Artificial intelligence is a branch of computer science that is concerned with building smart machines that are capable of performing tasks that typically require human intelligence. Artificial intelligence has caused radical changes in the world of technology and has opened avenues which were only possible in imagination a few years back. AI is being implemented in various industries on the macro level. So it becomes very important for the companies and individuals that are operating in this domain to protect their technology.
ARTIFICIAL INTELLIGENCE AND PATENTS
Artificial intelligence has been emerging and is soon becoming part of our everyday lives, many tasks that were only done by humans a few decades ago are now being performed by AI equipped machines. The researchers are constantly working on even more ambitious applications of AI which are soon to revolutionize the dynamics of our everyday activities. However artificial intelligence has raised some very interesting questions in the world of intellectual property. The lack of adequate regulations and standards in dealing with the issues related to patentability of AI related inventions and the issues of proprietary of inventions have left some open ended questions.
While trying to understand the possibility of patentability of AI related inventions, it is important to understand that these inventions are not merely a single invention but a combination of several, it could either be a computational or a mathematical method or an algorithm or a combination of both. In such situations the question that arises is whether it is even possible to reproduce these combinations in a claim and if that will reduce the scope of protection. Also the foundation of AI lies in its algorithms or mathematical models which are not eligible for patent protection.
FIRST TIME PATENT WAS GRANTED TO AI
South Africa for the first time had recognized an artificial intelligence system as an inventor of an innovative machine and granted a patent, becoming the first country globally to recognize that even an AI system is capable of holding rights (in this case patent rights).
The invention in this case was a food container based on fractal geometry, which provides interlocking system more accessible for robots to grab and the interesting feature of this patent is its inventor which is DABUS, an AI created by Stephen Thaler. It uses machine learning principles to learn and come up with unique ideas. However this patent grant received a lot of criticism from around the world, many intellectual property experts called it an invalid grant.
Though this invention satisfied all the criteria required to grant patent many countries denied the grant of patent due to the following reasons:
- The national patent laws of the countries only recognized humans as inventors and in this case the inventor was not a human, therefore they cannot grant patent.
- As mental faculty or mental conception which is the basic idea behind granting of patent is absent in an AI based system.
- As a machine cannot own any right only humans can.
- These are the common reasons why the existing patent around the world do not recognize AI patents.
AI PATENTS IN INDIA
In India patentability of algorithms and computer programs is absolutely banned unless it produces a technical effect or technical contribution which however is difficult to establish in case of an AI related invention, section 3(k) of the Indian patent act categorized computer programs or algorithms as non-patentable subject matter, even if patent protection is obtained for the same it would be useless as the algorithms will be constantly revised and updated, thereby new inventions being created and the same requiring protection.
Another issue that rises while granting patent to AI is the issue of non-obviousness, as in the case of AI with its capacity to process higher levels of intelligence and predictability it is likely that all inventive concepts could be considered obvious to an AI and if so would that eliminate the stipulation for patent protection entirely. Also under the current patent law the exclusive rights are granted only to the true and first inventor specifically to a natural person.
In India in order to patent an AI backed technology one must follow the computer related inventions guidelines (which excludes a computer program or algorithm from being patented. At present the CRI’s guidelines are focused on computers/algorithm/software based invention and are also used while examining AI based inventions.
With India emerging as a key innovation destination for global companies, around 6% of the emerging tech patents in India are for AI. India ranks 8th in terms of patent filling and the majority of the patents filed i.e. 60% originated in India followed by 20% in the US.
Granting patents to AI may seem right in the interest of the society but it has many complications and is just not so simple. Granting of patents to AI poses a number of practical legal questions. In order to be granted a patent one must be capable of holding rights similarly AI should also be capable of holding rights. As it is already known fact, AI doesn’t have a legal personality and for that reason it cannot own, transfer or assign rights. There have been several debates in regards to granting of a legal personality to AI around the world. With legal personality comes certain rights, duties and responsibilities and an AI will not be able exercise any of them. These similar debates were also raised when a self-driving car killed a woman in the USA. The case was settled by way of out of court settlement however this case brought a very meaningful discussion on board. The important question that arises in such a situation is whether a AI machine be held responsible for the accident. And the answer is definitely not so there is question of giving it a legal personality.
Though the AI based inventions are to be given some recognition in order to promote growth in society, legal personality isn’t the way to do it. For this purpose a separate category of personhood is to be created for achieving this goal. The European parliament passed a resolution in the year 2017 whereby it considered the possibility of creating electric persons. They opined that “creating a specific legal status for robots in the long run, so that at least the most sophisticated autonomous robots could be established as having the status of electronic persons responsible for making good any damage they may cause, and possibly applying electronic personality to cases where robots make autonomous decisions or otherwise interact with third parties independently.” The Indian parliamentary standing committee came up with a report, in which it incorporated AI based advancements into the intellectual property regime in India this year. The committee also suggested a separate category of personality that should be created to further encourage the growth of AI system based innovations.
It needs to be understood that giving an inventor status to an AI would challenge the settled principles of law thereby demanding and compelling to make amendments in its favor. Hence instead of giving a legal personality to an AI, giving it a separate personality would serve the purpose. This separate personality would have rights but it will not have responsibilities of its own. It is not necessary to grant inventor ship/ ownership to an AI based system however the same status can be granted to the owner of the said AI system. This way it would also increase the innovation because it is not possible for a machine to be motivated to innovate further as though it can think like humans it doesn’t have the same aspirations as that of humans. Nevertheless granting of patents to AI systems would bring about a lot of turns and revolutionize the technological world.