Introduction

Artificial Intelligence (AI) is recognized as a study of giving computers abilities of the human mind. Often, it is understood as computer technology that allows something to be done in a way that is similar to the way a human would do it.

Recently, ‘DABUS (device for the autonomous bootstrapping of unified sentience), the AI invented by Stephen Thaler, created two patentable inventions which were filed with the Intellectual Property Offices of the United Kingdom, the United States of America and the European Patent Office. One of these inventions is a new type of beverage container based on fractional geometry, and the other is a lighting device for attracting enhanced attention that may help with research and rescue operations. However, in the application for these patents the name given was not of Stephen Taylor, but “DABUS” the AI created by him!

Law has come across yet another speed-bump worldwide, once again showing the struggles of legislation in keeping up with the rapid and incessant development of the technological world. The main question now being asked is “can an invention be given inventor-ship for its invention in terms of patenting?”

Point of the Patent Law

In short, a patentable invention is considered to be something new and novel that has been invented; something that has a use and is not obvious.

The US Patent law an ‘inventor’ of the invention must be the one to apply for its patent. In essence it does not specify or indicate that the invention must be made by a human being.

The UK Patent law puts forth that ‘a person may apply for a patent’, but also says that ‘a patent for the invention may be granted primarily to the inventor…’. It also adds that “inventor” in relation to an invention means the actual deviser of the invention.

The European Patent law like the UK Patent Law, puts forth that a natural person (human being) or a legal person or any body equivalent to a legal person that is recognized as such by the law that they are governed under, can file for a European Patent. It also says that the right of the patent shall be with the inventor and also that the inventor has a right to be mentioned in the application that is submitted before the Patent office. Hence, the dilemma comes down to the same point of the inventor not being a person.

In the Indian context (perceived more out of curiosity), the law is quite direct in saying that only a person can file for a patent under Section 6 of the Indian Patent Act and gives no room for interpretation for an artificially intelligent entity.

This begs the question as to whether AI should be considered as a person or not?

AI AS A PERSON?

Now since the world is at the precipice of deciding whether AI should be given the sole inventor-ship for inventions, a few things should be brought into scrutiny in this aspect.

1.Core of Patent Law

The foundation on which patent law and its implementation was established was for the encouragement of ideas, discoveries and research, and giving the rights of such inventions to the inventors of the same, and also tackle the aspect of unfair trade practices in this regard. However, in a climate where an AI is recognized as the inventor, what happens to the AI’s interest in the Patent from a commercial point of view? Redirect to the inventor of the AI?

2. Intelligence or Intellect?

One thing that needs to be identified is whether an AI has intelligence or intellect. The main difference between the two being the ability to test the feasibility of information in a data base in many permutations and combinations, and the other being the ability to simply think. It should be considered that the AI is built by a human, performs the functions/courses in the direction that the human being equips it to. It can only amass more information that it is allowed & functioned to and can only process it in ways that its algorithms permit. So, can we really say that an AI is thinking?

3.SEP & FRAND

Along with that is a scenario where an AI will have to navigate its patents in unclear waters, not to mention the scenario in light of Standard Essential Patents (SEP) and the FRAND

Revolutionary yet feasible?

The idea of giving inventor-ship to AI appears to be an inventive idea.. But the question whether Inventor-ship can totally vest on an AI still remains , with mind-boggling number of factors to be considered. On the other hand though, where the AI is not recognized as the Inventor, the IP protection due to the invention falls short and it does reflect failure of the IP mechanism.  It is thus only about time that Patent Offices step up to address; not only the current issue but also contemplate technological advancements in the foreseeable future, just so not to be ambushed!

Summary