The inability to patent AI creations can lead to business investment

Courts around the world are increasingly questioning whether artificial intelligence technology laws can be treated as “inventors”.

AI continues to revolutionize areas such as drug discovery. However, the law is struggling to keep pace with this technological change, as can be seen in the lawsuits filed by the Dabus AI machine, in the name of an artificial neural network, around the world.

Stephen Thaler, a U.S.-based AI expert, filed a lawsuit in the English courts last year against the UK Intellectual Property Office after rejecting two patent applications that named him as the inventor of a Dabus-capable food container. flashing light.

Thaler filed patent applications in 2018 at the UK IPO. But the office rejected the application under the UK Patent Act 1977, which limits inventorship to “natural persons”. Thaler appealed his decision to the courts and last year the Court of Appeal upheld the decision of the UK IPO.

U.S. and European courts have taken a similar view of Dabusi (some of which have been appealed).

However, the Australian Federal Court ruled in July 2021 that Dabus could be considered an inventor for the purposes of Australian law. And, in South Africa, the project successfully obtained a patent listing Dabus as inventor. Then, on another tour, the Australian Federal High Court overturned the Australian ruling earlier this year.

Between 2002 and 2018, the share of patent applications to the U.S. Patent and Trademark Office for AI technology increased from 9 percent to nearly 16 percent. So if the courts and the government decide that the inventions made in AI cannot be patented, the consequences can be significant.

Without benefiting from a patent, companies may be able to reduce their investment in AI or have more incentives to keep their inventions a trade secret, some lawyers suggest, depriving society of the benefits of new technologies.

Giles Parsons, a partner in the law firm of Browne Jacobson, noted that the current patent law is not properly prepared to meet the challenge of the fourth industrial revolution. “We need a new regime for a new era,” he says. But some lawyers say AI is not yet in a phase where it can surpass the human mind.

Noam Shemtov, an IP and technology law lecturer at Queen Mary University of London in London, points out that most AI experts believe that this threshold will only be reached in 2075, so the current law is sufficient. “So it doesn’t make sense for the patent regime to prepare for this speculative development today,” he says.

Most responses to a U.S. Patent and Trademark Office inquiry in October 2020 agreed that the current IA could not be invented even without human author intervention, so existing U.S. intellectual property laws are already examining the evolution of AI.

Some courts have begun to recognize AI’s contribution, however. Last year, the German Federal Patent Court ruled that the inventor named in the patent application must be a natural person, but an AI system that deals with the underlying invention can also be named.

Protecting copyright in art or music is another area of ​​IP that the legal world will have to fight. The United Kingdom is one of the few countries that supports the work of a computer without human creators. The “author” of a computer-generated work is defined as the person who makes the necessary arrangements to create the work.

But some critics say that copyright protection is too much. They believe that copyright, human authorship and its roots in creative endeavor should only apply to human creation. The UK government has just concluded a public consultation to examine whether the law should be changed.

The situation is different in the US. The U.S. Copyright Office makes it clear that it will not record works produced by nature, animals, or plants, and provides other examples of works that cannot be recorded, such as a mural created by an elephant and a song created by the Holy Spirit.

AI added to list. Earlier this year, he rejected a painting created by AI New Entrance to Paradise. Thaler claimed ownership of the machine he created to become a copyright holder, but the office said the image was not a “copyrighted work” because it requires human authorship to obtain copyright protection in the U.S.

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