PATENT RIGHTS OF AI (Part- 2)

1.?? Comparative Analysis

It would be appropriate to analyze the different approaches to patenting artificial intelligence comparatively, as different jurisdictions encompass different perspectives and backgrounds.

On a global scale, the World Intellectual Property Organization defines artificial intelligence as "a discipline of computer science that is aimed at developing machines and systems that can carry out tasks considered to require human intelligence, with limited or no human intervention." By providing such a understanding of artificial intelligence, the organization has also endeavored to shed light on general principles related to the patentability of this intelligence, contributing to clarifying concepts of ownership and innovation.

The U.S. patent landscape reflects a complex relationship with AI. While patents have been granted for technologies exclusively designed by software, the lack of disclosure about AI's role raises concerns. Recently, a decision by the USPTO has firmly declared that an Al cannot be listed as the sole inventor on a patent application, which seems to settle the issue until future changes to the law.[1] The absence of clear regulations addressing AI patents in the U.S. adds ambiguity, with recent decisions reinforcing that AI cannot be listed as the sole inventor, leaving room for future legal developments. (W. Michael Schuster, 2018; )

“China's approach to AI patents involves treating AI more as a tool than an author.”[2] The original developers who crafted the AI contributed the primary creative effort during its inception. Even though the AI subsequently generated the article independently and was temporarily separated from its creators, the initial creative input persisted.[3] The country's examination attitude is generally favorable, with a focus on patent eligibility for technical solutions. A patent in China for an invention incorporating AI technology is achievable, provided it addresses a technical problem rather than an abstract concept and is appropriately managed. The substantial number of granted patents attests to the importance of adhering to these criteria.[4] The applicant should consider the technical area by selecting particular terms and clarify the integration of an AI idea and a practical application and effects thereof in the spesicifaction.[5]

This difference between the US and China relates to different manners of construing a claim. In the US, during exami- nation, a claim is construed before its objective is determined. However, in China, a claim is construed under its objective, and as such, some non-eligible subject matter will naturally be excluded during construction.

2.?? Future Trends and Challenges

The landscape of AI patent law is dynamic and multifaceted, presenting both opportunities and challenges. Scholars provide valuable insights into potential trajectories and issues that may shape the future of AI patents.

Examining the patent examination process and its alignment with technical developments is essential. At present, the evaluation of patents is trailing behind advancements in technology. It will take some time for examiners to comprehend that Artificial Intelligence is not merely an abstract concept but indeed represents a technical solution.[6]

Some authors believe that “given the current level of software and mathematical support for the development of artificial intelligence, there is also no urgent need (at least now and in the foreseeable future) to recognize artificial intelligence as a full-fledged (full-fledged, legal entity) subject of copyright and patent rights, intellectual property rights in general.”[7] Yet, the authors overlook the potential negative impacts of such an approach, not only on intellectual property itself but also on the economic and other interests associated with patents.

Developing a robust intellectual property (IP) strategy is crucial for companies operating in the AI sector. The companies should consider what part of the AI puzzle a patentable idea falls into and to determine the tolerances of adjusting the target claim scope to navigate rejections by patent offices.[8] For companies contracts play a pivotal role in protecting training datasets and AI-generated outputs ineligible for IP protection. Developing a robust intellectual property (IP) strategy is crucial to reap the benefits of financial and research investments in artificial intelligence (AI) and gain a competitive edge over rivals.[9]

Standardization of AI technologies is proposed as a universal solution to legal challenges . The challenges arising from the lack of transparency in the decision-making process of AI systems, restricting their involvement in tasks requiring increased responsibility.[10] Currently, AI lacks the ability to apply skill, effort, and judgment or participate in intellectual contributions.[11]

The definition of inventorship in the context of AI-generated content is another area of concern. Chikhaoui and Mehar (2020) highlight challenges arising from AI systems creating content traditionally associated with human intellectual contributions. A constructive initiative would involve countries developing a consistent legal framework that acknowledges inventions generated by AI or provides clarification regarding the status of such innovations..[12] Ayoubi (2022) suggests eliminating the conception requirement and redefining the term "inventor" in alignment with congressional intent.?

One crucial aspect to consider is the behavior of AI systems and the potential liability associated with their actions. If it was anticipated that the AI could exhibit infringing behavior, culpability might be established.[13]

The legislature should similarly think about other accessible systems for inventions and securing Al inventions (for example laws on trademark or copyrights) to help evaluate whether any of the patent law's subject matter qualification can be improved through different methods.[14] Moreover, assessing each case on its own benefits, existing legal systems for inventions should then allow to decently figure out who should be an inventor for patentable inventions considered in entire or to a limited extent by an AI.[15]

As technology advances, patent law struggles to adapt. Decisions must be made on whether AI systems should be deemed patentable, reflecting the ongoing challenges of integrating rapidly evolving technologies into existing legal frameworks.[16]

3.?? Conclusion

The discourse on whether artificial intelligence (AI) should be considered as a patent holder is complex and multifaceted. The essay has explored various perspectives from scholars such as Schuster, Fraser, Blok, Lines,? Fenwick,? Stamatis, and Garcia, shedding light on the intricate nature of this debate. The DABUS case serves as a pivotal example, illustrating the challenges in recognizing AI as an inventor and the varying perspectives across different jurisdictions.

The literature review has provided insights into historical contexts, concerns about AI rights, and the delicate balance needed between innovation and societal benefits. The essay has delved into the nuances of patent law, emphasizing the need for legislative amendments to accommodate the advancements in AI. The comparison between the U.S. and China's approaches has highlighted the diversity of perspectives on AI patents globally.

Case studies, particularly the DABUS case, have underscored the urgency for legislative adjustments to align patent laws with the evolving technological landscape. The ongoing challenges in integrating AI into existing legal frameworks require careful consideration, and the essay has touched upon future trends and potential solutions. The dynamic nature of AI patent law presents both opportunities and challenges, demanding a nuanced and adaptive approach.

In the face of these complexities, it is evident that patent laws need reassessment to accommodate the unique characteristics of AI inventions. The future trajectory of AI patent law will depend on how legal systems adapt to the evolving technology and whether they can strike a balance between fostering innovation and addressing ethical considerations. As technology continues to advance, policymakers and legal professionals must navigate the intricate landscape of AI patentability, ensuring that intellectual property laws remain relevant and effective in promoting innovation while safeguarding societal interests.

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References:

[1] Paul A. Ragusa & Nick Palmieri, The Future of AI Protection, 4 THE JOURNAL oF ROBOTICS, ARTIFICIAL INTELLIGENCE & LAW (FASTCASE) 7 (2021).??

[2] Paul A. Ragusa & Nick Palmieri, The Future of AI Protection, 4 THE JOURNAL oF ROBOTICS, ARTIFICIAL INTELLIGENCE & LAW (FASTCASE) 7 (2021).

[3] Shenzhen Tencent Comp. Sys. Co. v. Shanghai Yingxun Tech. Co., 305 Min Chu No. 14010 (Guangdong 2019);

[4] Youping Ma & Guoquan Yang, What Makes AI Subject Matter Patent Eligible, 281 MANAGING INTELL. PROP. 52 (2019).

[5] Comparing the approach to Al patent applications in the US and China – Youping Ma and Guoquan Yang (Paul A. Ragusa & Nick Palmieri, 2021; Youping Ma & Guoquan Yang, 2019).

[6] Youping Ma & Guoquan Yang, What Makes AI Subject Matter Patent Eligible, 281 MANAGING INTELL. PROP. 52 (2019).

[7] Pavlyuk, O., Parasiuk, N., Dutko, A., Parasiuk, V., & Stasiv, O. (2021). Protection of patent law objects, created by artificial intelligence (AI) technologies. Amazonia Investiga, 10(44), 230-240. https://doi.org/10.34069/AI/2021.44.08.22

[8] Sameer Gokhale, Patent Issues for AI and Factory Automation Inventions, 2 THE JOURNAL oF ROBOTICS, ARTIFICIAL INTELLIGENCE & LAW (FASTCASE) 189 (2019).

[9] Marta Duque Lizarralde, Héctor Axel Contreras, The real role of AI in patent law debates,?International Journal of Law and Information Technology, Volume 30, Issue 1, Spring 2022, Pages 23–46,?https://doi.org/10.1093/ijlit/eaac008

[10] Y. S. Kharitonova & V. S. Savina, Artificial Intelligence Technology and Law: Challenges of Our Time, 49 PERM U. HERALD JURID. SCI. 524 (2020).

[11] Emna Chikhaoui & Saghir Mehar, Artificial Intelligence (AI) Collides with Patent Law, 23 J. LEGAL ETHICAL & REGUL. ISSES 1 (2020).

[12] Natalie Smriti Bilung, Chat GPT: Patentability of AI Inventions, 3 JUS CORPUS L.J. 102 (2023).

[13] W. Michael Schuster, Artificial Intelligence and Patent Ownership, 75 WASH. & LEE L. REV. 1945 (2018)

[14] See Lyon (Supra note 30)

[15] Liu, S. Y., supra note 53

[16] Nicholas James Stamatis, Patenting Artificial Intelligence: An Administrative Look into the Future of Patent Law, 19 J. HIGH TECH. L. 329 (2019).

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