There have been about 340,000 patent applications on AI since the 1950s, and 53% of patents related to AI have been given since 2013. While the patent law links to artificial intelligence space very closely, scientists, along with lawyers, have been trying to figure out what to do with AI inventions. One such case came to light when the inventor of Dabus AI wanted his AI algorithm to have the patent for its creations of new products.
The patent offices could not grant the request as the law prohibits that. As it seems, the patent law says that the inventor/company behind Dabus AI cannot make a legal claim to a patent on the algorithm’s inventions. At the same time, the AI system too can’t be granted a patent on its own. According to Ryan Abbott, one of the lawyers who advocated on behalf of Dabus had stated that the AI system should be considered as the inventor. The system’s inventor would then hold the patent as a nominee.
Issue With AI Patent Ownership
Patent and other IP laws were written at a time when nothing but a human inventor was contemplated, which may not be appropriate for the questions that need to be answered with AI inventions. While tech is moving at an incredibly fast speed, legislation is not particularly in a country like India.
Nominating machines and computers as inventors is a slippery slope as they have no ethics, rights or duties which makes the issue very debatable. Expanding the term of an inventor to a legal person as a nominee that controls and also has the responsibility of this AI algorithm should be the way so that no discrimination of AI technology should take place for the innovation that does invention by themselves but controlled by humans.
Giving rights to one of the humans (a developer or a researcher) involved in the process of creation is the most expected solution and the least controversial one. The idea here is that while a programmer may not be the original creator of the work, they are the one who understands how the algorithm works, particularly if they were responsible in creating the algorithm in the first place. Perhaps may also be able to explain how the AI came up with the invention, as explainability is crucial for filing any patent.
Challenge To Create Intellectual Property That Is Legally Feasible & Helps AI Innovation
An algorithm or AI system needs personhood in the eyes of the law to be legally deemed as an author or inventor. IP law is to provide incentives for authors to create more and thus expand creative expressions and benefit society. Machines and AI systems, on the other hand, do not require incentives to create. There is also an option of joint claim and partnership between an algorithm and a programmer, where the biggest benefit is to transfer all rights to the human co-author.
But, this too is not as straightforward because there may be more stakeholders involved in the process like specialised hardware or tools that were used for training a model or if an algorithm used by the model is a derivative of a previous algorithm from a completely different creator. Plus, one more complication is that joint IP registration requires a distinguishable contribution from each participant.
The human step is also important for the commercial freedom that comes with new inventions and motivates researchers to keep inventing for seeking financial rewards. The IP issue with AI would get more controversial in case researchers don’t have a full understanding of the AI explainability. Plus, to get a patent as per the patent law in most countries, there needs to be an original personal imprint of an inventor for any invention. Now, if the creative process of neural networks or other black-box algorithms has little to no link to the programmer, it creates a natural issue that a programmer(s) has no contribution to an invention.
This has made it clear that the current legal system may not be prepared to handle intellectual property related to things like patents, copyright when AI systems are used in isolation to create innovation, artwork, music, etc. The law, according to experts, is lagging behind technology.
No wonder, the United States Patent and Trademark Office – USPTO, has been trying to understand artificial intelligence in detail to help grant AI-based patents. The reason why USPTO is looking to gather public information on AI patents is because of the varying levels of potential uncertainties in such patent filings. AI methods and systems can differ in their technical implementations and also rely on a large amount of training by developers, inventors and system users, according to USPTO.
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Vishal Chawla is a senior tech journalist at Analytics India Magazine and writes about AI, data analytics, cybersecurity, cloud computing, and blockchain. Vishal also hosts AIM's video podcast called Simulated Reality- featuring tech leaders, AI experts, and innovative startups of India.