What does the IP industry really think about AI inventions?
With ever-increasing rates of proliferation in all facets of daily life, artificial intelligence (AI) has attracted the interest of many policymakers and researchers around the world.
In February 2019, the US launched a federal initiative titled “ Artificial Intelligence for the American People” with the objective of developing and implementing strategies to accelerate AI-related innovation in the US.
With its focus being the promotion of the progress of science and useful arts, the US Patent and Trademark Office (USPTO) was tasked with coming up with plans on aiding the growth and expansion of AI research and development.
Against this backdrop, the USPTO last autumn released a set of questions to the general public delving into various intersection between patent law and policy with AI:
- Inventions that utilise AI, as well as inventions that are developed by AI, have commonly been referred to as “AI inventions”. What are elements of an AI invention?
- What are the different ways that a natural person can contribute to conception of an AI invention and be eligible to be a named inventor?
- Do current patent laws and regulations regarding inventorship need to be revised to take into account inventions where an entity or entities other than a natural person contributed to the conception of an invention?
- Should an entity or entities other than a natural person, or company to which a natural person assigns an invention, be able to own a patent on the AI invention? For example: should a company that trains the AI process that creates the invention be able to be an owner?
- Are there any patent eligibility considerations unique to AI inventions?
- Are there any disclosure-related considerations unique to AI inventions?
- How can patent applications for AI inventions best comply with the enablement requirement, particularly given the degree of unpredictability of certain AI systems?
- Does AI impact the level of a person of ordinary skill in the art? If so, how?
- Are there any prior art considerations unique to AI inventions?
- Are there any new forms of IP protections that are needed for AI inventions, such as data protection?
- Are there any other issues pertinent to patenting AI inventions that we should examine?
- Are there any relevant policies or practices from other major patent agencies that may help inform USPTO’s policies and practices regarding patenting of AI inventions?
These questions drew considerable interest from the public, with the USPTO gathering comments from more than 40 institutional entities including industry leaders, bar associations, and patent offices from other jurisdictions.
In April, the USPTO released the received comments. In view of the responses, the questions may be grouped into three topics: (1) the definition of AI; (2) inventorship issues relating to AI inventions; and (3) patentability requirements.
Definition of AI inventions
Defining what constitutes an AI invention is invaluable in guiding the discussions related to the intersection between AI and patent law (question 1).
In the popular imagination, the term “AI” often conjures up thoughts of automatons making decisions on the fly without much human input.
