Should AI-Generated Inventions Be Patentable, and Can AI Be an Inventor?
Abstract
With the progress of science and technology, Artificial Intelligence (AI) emerges at the historic moment. Unconsciously, AI with rapid development has penetrated many aspects of people's life. However, it has also brought a lot of relevant legal problems. For example, in the field of intellectual property, there are various issues on which no consensus has been attained yet. Especially when it comes to the common outputs of AI, such as writings, designs, and even inventions. Recently, a patent-related case called DABUS has attracted wide attention and has led to a consideration of the questions of whether the invention generated by AI can be patented and whether AI can be the inventor. This is also the main issue addressed in this article. This article will first introduce the current situation and reasons for the rejection of inventions generated by AI as patents, and then analyse such rejection as unreasonable in terms of the purpose of patent legislation, patent criteria, and patent exclusions; and further address some inherent concepts that should be changed, as well as existing cases and legislative tendency. Finally, it is concluded that the future trend should be to gradually grant patents for AI-generated inventions and to recognise AI as the inventor, which is more conducive to technological development and social progress.
Keywords
Full Text:
PDFReferences
Thaler, V, The Comptroller-General of Patents, Designs And Trade Marks [2020] EWHC 2412 (Pat).
Andreas, E, 'Can a Patent Be Granted for an AI-Generated Invention? 'GRUR International, 69.11(2020) 1123.
Thaler, V, The Comptroller-General of Patents, Designs And Trade Marks [2021] EWCA Civ 1374.
Patents Act 1977 13(2)(b).
Aleksandra, B, 'Machina Ex Machina Artificially Intelligent Systems as Inventors under Polish Legal Framework' (2021) Wroclaw Review of Law, Administration & Economics 10(1) 30.
Anthony, B., 'The Sovereignty of Parliament—Form or Substance' (2011) The changing constitution (5) 26.
'Petition decision: Inventorship limited to natural persons' (The United States Patent and Trademark Office, 27 April 2020) Accessed 9 December 2021.
'EPO publishes grounds for its decision to refuse two patent applications naming a machine as inventor' (European Patent Office, 28 January 2020) Accessed 9 December 2021.
Andreas, E, 'Can a Patent Be Granted for an AI-Generated Invention? 'GRUR International, 69.11(2020) 1129.
EPO, 27 January 2020, 18 275 163.6 [19], [21] ¼ 18 275 174.3 [20],[22].
EPO, 27 January 2020, 18 275 163.6 [22] ¼ 18 275 174.3 [23].
European Patent Convention, Art81.
Abbott, R, The Reasonable Robot: Artificial Intelligence and the Law (Cambridge University Press 2020) 21.
Lucas R Yordy, 'The Library of Babel for Prior Art: Using Artificial Intelligence to Mass Produce Prior Art in Patent Law' Vanderbilt Law Review 74(2) (2021) 561.
Hazel V.J. Moir, 'An inventive step for the patent system? ' E.I.P.R. 2013, 35(3), 125.
Aleksandra Bar, 'Machina Ex Machina Artificially Intelligent Systems as Inventors under Polish Legal Framework' (2021) Wroclaw Review of Law, Administration & Economics 10(1) 22.
Mitchell and others, Goff & Jones: the law of unjust enrichment (8th, Sweet & Maxwell 2011) 11.
Bank of Cyprus v Menelaou [2015] UKSC 66.
Graham Dutfield and Suthersanen Uma, Dutfield and Suthersanen on Global Intellectual Property Law (Edward Elgar Publishing 2020) 179.
Aleksandra Bar, 'Machina Ex Machina Artificially Intelligent Systems as Inventors under Polish Legal Framework' (2021) Wroclaw Review of Law, Administration & Economics 10(1) 19.
'Control experiment, n.' Collins English Dictionary Online, HarperCollins Publishers, Accessed 9 December 2021.
General Agreement on Tariffs and Trade 1947, Act 1.
General Agreement on Tariffs and Trade 1947, Act 3.
Abbott, R, The Reasonable Robot: Artificial Intelligence and the Law (Cambridge University Press 2020) 11.
Joshua Dressler and Michaels C. Alan, Understanding Criminal Procedure: Adjudication (Vol. 2. LexisNexis 2006) 7.
Larry K. Gaines and Roger LeRoy Miller, Criminal justice in action (Cengage Learning 2021)10.
Gäfgen v. Germany (2010) no. 22978/05, §25 (GC).
'Concept of “morality” and “ordre public” ' (European Patents Organization) Accessed 10 December 2021.
Lord Sales, 'Algorithms, Artificial Intelligence, and the Law' Judicial Review (2020) 25(1), 48.
Aleksandra Bar, 'Machina Ex Machina Artificially Intelligent Systems as Inventors under Polish Legal Framework' (2021) Wroclaw Review of Law, Administration & Economics 10(1) 7.
Huang, HB, 'Biology and Beauty' China Academic Journals (Qingdao Server) - Chinese - Education/Social Sciences (Series H),23(1), 17.
Lee, ZY, Mohammad Ershadul Karim, Kevin Ngui, 'Deep learning artificial intelligence and the law of causation: application, challenges and solutions' Information & Communications Technology Law (2021)30(3), 256.
'Artificial intelligence: Google's AlphaGo beats Go master Lee Se-dol' BBC News.12March 2016. Accessed 11 December 2021.
Lee, ZY, Mohammad Ershadul Karim, Kevin Ngui, 'Deep learning artificial intelligence and the law of causation: application, challenges and solutions' Information & Communications Technology Law (2021)30(3), 262.
'The essence of human beings is what the repeater is' (2021-10-09) Accessed 11 December 2021.
'What are the Three Basic Types of Dispute Resolution? What to Know About Mediation, Arbitration, and Litigation' (2021-10-11) Harvard Law School Daily Blog. Accessed 11 December 2021.
Charlotte, WO, and Chan, C, 'Artificial intelligence and the law' ITNOW 59.1 (2017): 36.
Lord Sales, 'Algorithms, Artificial Intelligence, and the Law' Judicial Review (2020) 25(1),75.
He, J, 'WIPO Conversation on Intellectual Property (IP) and Artificial Intelligence (AI): Second Session’ WIPO (2020).
Lord Sales, 'Algorithms, Artificial Intelligence, and the Law' Judicial Review (2020) 25(1),78.
Thaler v Commissioner of Patents [2021] FCA 879.
Thaldar, Donrich, and Meshandren Naidoo, 'AI inventorship: The right decision?' South African Journal of Science 117.11/12 (2021)1.
Seiko Hidaka, 'Updated: court of appeal - ai generated inventions denied uk patent in dabus case', gowling wlg.< https://gowlingwlg.com/en/insights-resources/ articles/2021/updated-ai-invention-denied-patent-in-dabus-case/?utm_source=Mondaq&utm_medium=syndication&utm_campaign=LinkedIn-integration> Accessed 31 December 2021.
House of Lords, 'AI in the UK: ready, willing and able?' (The Authority of the House of Lords, Select Committee on Artificial Intelligence Report of Session 2017–19 ) 2.
Revised Issues Paper on Intellectual Property Policy and Artificial Intelligence. WIPO/IP/AI/2/GE/20/1 REV.
European Parliament resolution of 20 October 2020 with recommendations to the Commission on a framework of ethical aspects of artificial intelligence, robotics, and related technologies (2020/2012(INL)).
DOI: https://doi.org/10.18686/esta.v9i2.227
Refbacks
- There are currently no refbacks.
Copyright (c) 2022 Ruyi Xiao
This work is licensed under a Creative Commons Attribution-NonCommercial 4.0 International License.
