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Artificial Intelligence as Inventor

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09 November 2020

At the 2020 AIPPI World Congress held online last month, the AIPPI made a number of resolutions on the hotly debated topic of Inventorship of inventions made using Artificial Intelligence (AI).

Most jurisdictions require that patent applications disclose an inventor who is a natural person. This requirement is designed to protect and acknowledge the rights of human inventors. Inventions, however, can be generated autonomously by AI where no natural person apparently qualifies as an inventor.

 

With this in mind, the AIPPI resolved that:

  1. International harmonization regarding inventorship of inventions made using AI is desirable.
     
  2. An invention should not be excluded from patent protection merely because an AI contributed to the invention.
     
  3. The requirements for a natural person to be considered an inventor or a co-inventor of an invention made using AI should not be different compared to the requirements for being considered an inventor of an invention made without using AI.
     
  4. Irrespective of whether or not AI was used in making the invention, a natural person should be considered an inventor or a co-inventor, if they have made an intellectual contribution to the inventive concept. By way of nonlimiting examples, and assuming the other requirements of invention are met with respect to inventions made using AI, the following may be considered inventors:

     

    a. A natural person who uses an AI algorithm to design a particular type of product or process should be considered to be an inventor or a coinventor when the resulting invention is of the type of product or process intended by the natural person.

    b. A natural person who designs an AI algorithm used in the making of an invention should be considered to be an inventor or a co-inventor depending on the person’s level of contribution to the invention. If a natural person designed the AI algorithm to solve a predetermined problem which is effectively solved by the invention, such natural person should be considered to be an inventor of the invention. If the AI algorithm was a generic AI algorithm designed without a specific problem in mind, the natural person who designed the AI algorithm should not be considered an inventor absent another intellectual contribution to the inventive concept.

    c. A natural person who selects data or a data source for training an AI algorithm should be considered to be an inventor or a co-inventor of an invention made using that AI algorithm if the data or data source are selected with the purpose of solving a predetermined problem which is effectively solved by the invention.

    d. A natural person who selects or generates data or selects a data source for input to a trained AI algorithm should be considered to be an inventor or a co-inventor of an invention made using that AI algorithm if the data or data source are generated or selected with the purpose of solving a predetermined problem and the invention effectively solves the problem.

    e. A natural person who recognizes that an output of an AI algorithm constitutes an invention should be considered to be an inventor or a co-inventor of such invention.

     

  5. An AI should not be considered an inventor or a co-inventor of an invention, nor be permitted to be named as such, even if no contribution to the invention by a natural person is identifiable.
     
  6. In order to foster innovation, inventions made using AI should not be excluded from patent protection per se, regardless of whether or not there is sufficient contribution by a natural person to be named as an inventor and provided that there is a natural or a legal person named as an applicant.

 

The European Patent Office and the US Patent and Trade Mark Office both refused patent protection for inventions stated to have been created by an AI machine called DABUS. The United Kingdom Intellectual Property Office decided in a similar way. While AIPPI clearly puts the natural person at the forefront, for purely AI-generated inventions it resolves that there should be no exclusion per se provided that there is a natural or a legal person named as an applicant. The resolution sadly fails to indicate what options an applicant could have in case there would be no substantial human contribution to the invention. In such a case it seems no true inventor could be assigned but the AI, which is deemed impossible.

The full report can be found via the link.

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