Intellectual Property and Artificial Intelligence

Intellectual Property (IP) is a tool for innovation that encompasses different creations of the mind and may be broadly categorised as industrial property, copyright and sui generis rights (plant breeders’ rights). Whereas IP has existed since time immemorial, technology is a new disruptive player that is changing the status quo of conducting business. One such new entrant in the technology space is artificial intelligence.

One key aspect of human intelligence is the ability to solve problems and learn from different aspects of the environment. One can confidently say that a majority of the inventions in the world are as a result of human creativity. But what if an AI System can be creative and solve problems? The presumption has always been that the inventor is usually a human being. However there has been a paradigm shift and we are noticing that AI is increasingly sophisticated at autonomously generating output that could be subject to patent protection.

The Industrial Property Act of Kenya provides that an application for a patent in respect of an invention may be made by the inventor or by any other person. From the foregoing, one can argue that the Act does not actively provide that the inventor must be human. In relation to the above, there are 3 questions to ponder on:

1)     Should inventions that have been created by AI systems be excluded from the current patent regime even if these inventions meet all the patent registration requirements?

2)    Can the latest technological advancements such as AI run smoothly with the current Intellectual Property regime or is there a need for additional policy changes to cater for inventions created by AI systems?

3)    Should specific legislative provisions be introduced in the Patents Act to cater for the registration and ownership rights for novel inventions created by AI systems?