8 June 2020
Introduction
The metamorphosis of the community wealth from the physical possession to nonphysical possession like patents and trademarks has delineated global competition and high investment in research and development. During the financial impact of the corona pandemic, IPR aspire to the innovations and develop a foundation for economic growth. At the current situation IPR surges in response to a recession and balance the market situation. Artificial intelligence technology emanation has led to many innovations and developments, which could ease the human efforts for example during corona pandemic many AI based systems are functioning as the frontline workers namely Asimov’s KARMI-Bot that assists the hospitals in serving medicines and food. Further many AI based systems also facilitate human resource management such as AllVoices, Vault Platform, Spot and etc. making the workplace more congenial. Thus it is an important tool for the ontogeny of technology and business operating across an array of industries influencing creation and evolution.
Artificial intelligence plays a major role in the Intellectual Property sector. Artificial intelligence is used in various field of IPR such as search & analytics, drafting and patent protection such as AI based products of TurboPatent’s i.e. RoboReview and RapidResponse; which perform patent filings and patent review process. However, the evolution of Artificial intelligence systems as a means of innovation steer ambivalence for inventors across the globe since patent invention provides employment to many.
In general, the definition of an invention states that a claim needs to acquire technical characteristics which means a claim mentioned in the invention needs to solve the problem by comprehending technical features. Algorithms are explicitly exonerated from being patentable as they are mathematical facts and formulas in the US or even in India. Therefore, an innovation solving a problem using mathematics expostulates on the ground of definition of an invention since it would be arduous to succeed the objection by amendments or arguments. Artificial intelligence is a creation of human mind implemented using mathematical algorithms and calculations to make decisions using real-time data such as Roboreview is an amalgamation of algorithms designed to automatically review patent applications and amended claims for novelty, patentability, claim support, etc. Therefore, an invention created by Artificial intelligence is an accumulation of algorithms and formulas with no motive of solving a problem; they are designed to imitate the human thought which leads to invention.
AI machine as an inventor: USPTO denied
USPTO claimed that under 35 USC 100(f) of US patent law inventor is the “individual or, if a joint invention, the individuals collectively who invented or discovered the subject matter of the invention.” in pursuant to the appeal of DABUS, an AI-based system designed by Dr. Stephen Thaler. USPTO repudiated two inventions of DABUS as an inventor, proclaiming that the granting of a patent under 35 U.S.C. § 151 for an invention that covers the machine does not imply that the patent statutes promulgate the machine as an inventor. Machine learning can translate a situation into new ideas using formulas and facts, but it can’t be trained to solve particular problems such as DABUS is a programmed series of a neural network trained to create inventions instead of solving a problem. Vacuously creating new ideas is not a part of the invention unless solving a technical problem. Therefore patents offices and Federal Circuit case laws concerning inventors insist innovations need to be attributed to humans as patents are the accomplishment of a natural person’s mind; in addition, it would also avoid legal complications such as property rights since the AI machine cannot hold property rights.
EPO declare no to AI as an Inventor
EPO as well refused the AI system as an inventor anticipating its laws and regulations. The decision was enacted after DABUS an AI system filed two patent applications. EPO asked Dr. Stephen Thaler the creator of DABUS, to correct the inventor’s name and denied to agree on the inventor’s argument for the AI system as an inventor. EPO explained the inventors right under Articles 60, 62, 81 EPC and Rule 19 EPC of European Patent Convention and clearly enunciated that AI systems or machines define here and now have no entitlement as inventors because they have no legal personality equivalent to natural persons. According to the European Patent Convention, an inventor name involves a family name, given names, and a full address of the inventor under Rule 19(1) EPC, which an AI machine does not possess. Therefore, the patent application was rejected on the grounds of the formal requirement of inventorship designations.
AI bolster IP professionals in business development by inaugurating new markets for research and development, scrutinize IP portfolio and impart a clear picture on next-generation IP investment but, Artificial Intelligent systems can’t be an inventor since the word “individual” in 35 USC 100(f) indicates a human “natural person”. Therefore, the inventor for the inventions created by DABUS is Dr. Stephen Thaler.
AI systems and Indian Patent law
In the Indian Patent system according to the provisions of Section 3(k) of the Patents Act 1970, computer programs, mathematical formulae, and business methods are considered as non-patentable inventions. Therefore, patents entail meeting the software patent eligibility test fused with hardware aspects, working methodology to be granted under Indian patent law. To mount AI innovations in India broad focus should be laid on reconditioning patent law claiming AI inventions since India has a massive rise in patent filings due to flowering of start-up’s in progression of Artificial intelligence systems.
Conclusion
To encapsulate, it can be concluded that Artificial intelligence systems are going to silhouette the future of innovations. Artificial intelligence certainly has the magnitude to enhance the scope of innovation to exponential levels. As introduced by the Niti Aayog discussion paper 2018: healthcare, agriculture, education, infrastructure, and transportation will be tremendously benefited from AI systems, and we have recently observed the Artificial intelligence systems are used as a tool in coronavirus pandemic. Artificial intelligence systems are used for assistance in research, drug discovery, hospitality and tracking of patients, for example, the Government of India has launched MyGov Corona Helpdesk chatbot that works on Artificial Intelligence to provide precise details about the coronavirus to the people. The embryonic value of AI to automate, evolve, improve & protect will enable unpredictable changes to human enlightenment. The optimistic recovery from the pandemic is to leverage AI technologies and applications to innovate. Artificial intelligence systems imply to be furnished in India to push the patent filings overhead. To meet the pinnacle of AI innovations and obtain patents related to AI one should keep in mind the patentability criteria under section 3 (k) of the Indian Patent Act and envisage an approach for patent drafting to yield the protections in Artificial intelligence systems inventions. To facilitate faster operations in patent office Artificial Intelligence must be introduced for application filing, electronic data processing, screening, classification, publication, examination, opposition, hearings, and restoration of patent. Since the need of the hour is to innovate and accomplish heights.
The article was 1st published in IP link Asia.
For further information, please contact:
Manisha Singh, Partner, LexOrbis
manisha@lexorbis.com
