Artificial Intelligence as a protected innovator? (text in English only)

One month ago the UK Intellectual Property Office (UKIPO) updated its Manual of Patent Practice by explicitly clarifying that an Artificial Intelligence (AI) program is not acceptable as an inventor in patent applications because the identification of “a person” is required by law. The consequence of failing to indicate a natural person – in proper human flesh – as inventor is that the patent application is considered withdrawn and, therefore, not entitled to patent protection.

The change in UKIPO’s patent practice seems to have been provoked by several patent applications submitted in the UKIPO, the US Patent and Trademark Office and the European Patent Office, respectively, which concern innovative beverage container and rescue operation device. The applicants for those patents are two professors from Surrey University, but they named the AI program “Dabus” as the inventor of the two innovative products.

According to information provided on the “Dabus” project website, the UKIPO indicated that the patent applications fulfill the novelty and inventive step requirements. However, the applications could not be granted protection as the inventor is an AI program and not a human being.

Naming an AI as inventor is, arguably, a strategic move to attract attention to the project. However, it poses a far broader question. What and how much human participation is required for Intellectual Property (IP) rights to be recognized? IP laws now recognize humans and, under some jurisdictions, human organizations (e.g. companies, universities, etc.), to be named as authors, inventors, performers or to be, generally, IP right holders. Legal systems are limited to natural persons and legal entities as possible right holders without even considering a third category of right owners. This is unlikely to change in foreseeable future. Nevertheless, the concepts of inventorship and authorship may have to be reconsidered. AI is already playing an ever-extending role across all fields, including in creative industries and innovation. Many types of works, designs, inventions, performances are and will be created with the help of AI.

It will be a sophisticated challenge for future legislators and practitioners to establish rules on the participation of AI in the creation/invention process. Would the creator/inventor of the AI be also automatically creator/inventor of the AI-made works? Or the granting of rights must depend on the amount of human interference in the creation/invention process? Would purely AI-created works be orphan or unprotected works? Time will tell, very soon, and IP professionals would have to catch up as quickly as possible.

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