The growing developments in the field of artificial intelligence (AI) are having fundamental effects on the worlds of business, technology and the law. In particular, one of the legal areas which is currently being grappled with is the impact of AI on intellectual property law and more specifically, if an AI system can be named as the inventor on a patent.
A recent test case before both the UK courts and European patent authorities has revealed a glaring loophole in the patent protection for inventions which are wholly devised by AI machines. The case which came before the UK Court of Appeal was Thaler v Comptroller General of Patents, Trade Marks and Designs and related to a patent application where the inventor was stated to be DABUS, an AI machine owned by Mr Thaler. The court upheld previous decisions which confirmed that, under the relevant patent legislation, the “inventor” for a patent application must be the “person” who devised the invention – as an AI machine is not a person, it cannot be an inventor for the purpose of the Patents Act, even if it has actually created an invention in fact.
At the start of 2022, the European Patent Office’s Appeal Board also affirmed this approach with the result that a patent will not be available where the patent application names the AI machine as the inventor, rather than a human being. In coming to these decisions, the additional argument of Mr Thaler that he was the owner of the AI machine and should therefore be entitled to the patent was also rejected – this was again on the basis that the AI machine was not a person and so was incapable of transferring legal rights to any other party.
The cases brought by Mr Thaler were test cases aimed at confirming what the legal stance of the UK courts and European Patent Office would be if an AI machine was named as inventor. These actions also coincide with various national and international IP consultations looking at the current position and suggesting options for reform. In the UK, the Intellectual Property Office is carrying out a consultation and has suggested the following options to deal with inventions made by AI machines:
- no change to the current legal system – on the basis that nearly all AI machines carrying out inventive work will need assistance from humans using the AI machine as a tool and the relevant human can be named as the inventor;
- expand the definition of “inventor” to include those humans who are responsible for AI systems which devise inventions;
- change current legislation so that patent applications can name AI machines as the inventor;
- creating a new type of IP protection allowing the protection of AI-created inventions – this would be a similar right to a patent right in order to protect inventions which would otherwise not be capable of patent protection (this new right would co-exist with the current patent system).
The consultation process is still running and no firm legislative proposals have been made. Following, the Thaler decision, any businesses applying for patent protection should state the human most closely linked to the AI machine invention as the inventor in order to enable the patent application to proceed given the current legislation in place.
Longer term, there are many open questions such as what level of involvement would be needed to show that someone is “responsible “ for an AI machine and the degree to which there is international agreement on AI inventions to ensure a level playing field for AI inventions.
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