AI inventorship floods courts and the IPO with millions of new patents

(viii) Digital Inventions and Innovation The advent of AI has given rise to a debate about the degree to which the use of AI technologies will affect the granting of IPRs and the IP system more generally. There are many challenges associated with AI inventions in the future patent environment. As AI-based inventions continue to advance, new challenges rise in the IP system relating to the human contributions affecting both inventorship and ownership, and patentability. A fundamental concept of the IP system is to grant IPRs to protect concretion of ideas. This poses many questions relating to whether the current IP framework should be amended to incorporate these AI-based thinking machines and their inventions to be eligible for IPRs. Indeed, at the rate AI is evolving it may get to a point where it is able to think and to invent. In January 2019, WIPO published an AI-themed edition of its Technology Trends report, which found that 50 percent of all AI patents globally have been published in the last five years. Patent activity in this field grew by 650 percent between 2011 and 2017. Moreover, the growth rates observed in the identified AI-related patent data are higher than the average annual growth rate for patents across all areas of technology, which was 10 percent between 2013 and 2016. With the reality that AIs will be generating new inventions or new invention leads, the applicability of the traditional patent law requirements and their underlying policies are being challenged, especially with regard to such key considerations as inventorship (can an AI be considered an inventor?), ownership (can ownership be attributed to an AI; if not, then who is the owner—the software developers, the data scientists who provide data to the AI algorithm, hardware developers or another party altogether?), who (or what?) constitutes a person skilled in the art, as well as issues relating to novelty, inventive step/obviousness, state of the art, and disclosure, to name a few. It is worth noting that the decision in Thaler v. Comptroller General of Patent TM and ID of UK (2020)17, and Thaler v. Commissioner of USPTO18 have resolved to decide against granting inventorship rights to a creativity machine (AI). Neither will the owner of the machine be entitled to any right because he/ she did not invent, nor can he/she own by assignment because a machine cannot assign anything. In the 90s, the Internet prompted many cultural and business changes that influenced the copyright system. Now, WIPO members and observers are studying the potential impact of AI on the IP system including patents and other IP rights. The digital economy continues to grow in importance. Digital inventions have value both in themselves and in facilitating other economic activity. Consequently, it is important that the rules for patentability are consistent, well understood and harmonized across jurisdictions. While the degree to which the use of AI technologies will affect established IPRs such as patents, trademarks, and copyrights is uncertain, it is critical to ensure that the IP system and the IPO of the Future is well-equipped to support the emergence of transformative technologies. Long established principles of IP laws, such as those defining thresholds of originality and disclosure requirements, may provide built-in means for the IP framework to adapt to new realities, as they have done with other disruptive technologies in the past. Indeed, AI has permeated the entire world of IP. This includes trademarks and designs with instances such as analyzing novelty, enabling assessments of level of distinctiveness, and enabling trademark comparisons to consider potential conflicts. For instance, WIPO has developed a tool that uses AI to search through trademark images, enabling results regarding comparisons and whether a proposed trademark is generic to be generated within seconds. In addition, AI is being used to examine audio and visual fingerprints to detect uploaded material that infringes on another’s copyright, significantly improving private copyright policing efforts. AI-based patent application drafting systems have also recently emerged, substituting the work of patent attorneys. These systems have challenges to overcome before they can generate complete and accurate patent specifications, but their current capabilities and the rapid advancement of the technology indicates that this potential is not so far away. Millions of machine-generated patents could clog the system, impacting genuine innovations as well as competitiveness. On one hand, companies can use computer-generated claims to saturate the technical space around their own patents to prevent competitors from obtaining improvement patents in the same area. On the other hand, companies can also saturate the technical space around their competitors’ patents to prevent the competitors from subsequently patenting improvements on the competitors’ own inventions. The challenges discussed above surrounding patenting digital inventions, including AI, may result in digital innovators looking for other ways to protect their ideas and obtaining some monopoly. How will this affect further innovation and the spread of knowledge to public? Is it time to start considering a different type of IPR with different tests for such inventions? Is it time to codify how AI’s role is to be viewed in instances of infringement?