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HomeNorth AmericaThe new IP horizons in the era of AI (Artificial Intelligence)

The new IP horizons in the era of AI (Artificial Intelligence)

In an era where the application of artificial intelligence (AI) is pushing the boundaries of human innovation, the question of whether AI-generated inventions could deserve patent protection has become a pressing issue. Its complexities in the world of Intellectual property have brought to light issues with current legislations and bigger questions that have attracted the attention of the courts around the world. 

The case of Dr. Stephen Thaler and his AI system known as DABUS (Device for the Autonomous Bootstrapping of Unified Sentience) has brought this matter to the forefront, as a recent appeal process in July has revived the debate over the patentability of creations conceived by AI. 

Dr. Thaler decided to submit two patent applications in 2018 by the name of “Food container” and “Devices and methods for attracting enhanced attention” in which Dr. Thaler indicated that both inventions were “by ownership of the creativity machine DABUS”. That statement put into question the criteria for patentability, where ownership and personality were and are the main topics to be considered or whether human or AI, should not necessarily be a determining factor to patent an invention. 

However, Dr. Thaler’s request for patent protection encountered issues when the patent office raised fundamental concerns. The core issue revolved around the longstanding requirement that inventors must be human entities possessing a comprehension of the inventions they seek to patent. But in the case of AI as a generator of innovation, a critical question raises: Can an AI system be recognised as an inventor, and if so, does the current legislation and international treaties should be amended and grant the legal criteria for inventorship to AI?

Traditionally, the UK patent Act 1977, section 7 as well as most of the global patent law regulation have rested on the premise of human creativity, understanding, and intent, that means that Inventors not only conceive their ideas but also grasp their technological underpinnings and real-world applications. These main ideas and prerequisites ensure that patent rights are granted to individuals whose contributions foster innovation and the dissemination of knowledge.

This previously long established conception of patentability may be considered obsolete in a world where AI systems like DABUS, despite the fact that they lack human consciousness; understanding; and intent, can produce data analysis innovations through their algorithms.

Therefore, the big question left to lawmakers and the courts is to decide whether inventorship, human and non-human, should be entitled to patent protection. In Dr. Thaler and AI-DABUS’ case the first attempt to get a patent application under the authorship of DABUS was refused, and later, by an appealing process that was granted on the basis of “other compelling reason” all the attention of the media was put onto the UK court as this appeal process had the potential to lay down significant precedents by shaping patent law and intellectual property rights or maintain the stance of human inventorship as the only feasible way.

During Dr. Thaler’s court session, the main topics discussed were related to the lack of personality of an AI system such as DABUS, and the potential of ownership rights of the invention to the owner of the machine. Although, all those debates and exchange of ideas led to a legal discussion based on traditional legal forms more than substance and ended in a dismissed case in July 2023, the precedent and major question remain in the legal and technology sides of the inventors/programmers, judges, lawyers, and lawmakers. 

In any case, the dialogue about the patentability of AI-generated inventions still opens, as the rapid technological advancements where traditional legal frameworks are being tested and redefined and the need to strike a balance between acknowledging AI’s contribution to innovation and upholding the principles of human creativity and understanding, have never been more necessary as technology oversteps on our current legislations. 

Jazmin Labra Montes is an Academic Advisor for the National Autonomous University of Mexico and is currently working at the University of Cambridge as a research assistant at IFM (Institute for Manufacturing) and as a business analyst. 

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