The CP allows AI inventions to be patented and dynamically raises the standard of inventorship without granting rights to AI – that means the Spillover DA is a net-benefit.
Lawbotics ‘20 – a non-profit organization founded in 2017, dedicated to the study of the main issues arising from artificial intelligence mainly from a legal perspective. Their organization is mainly composed by practicing lawyers specialising in the fields of intellectual property, regulatory law and technology. Lawbotics, February 14 2020, “Re: Observations On The Draft Issues Paper On Intellectual Property Policy And Artificial Intelligence,” World Intellectual Property Organization, https://www.wipo.int/export/sites/www/about-ip/en/artificial_intelligence/call_for_comments/pdf/org_lawbotics.pdf
As regards Issue 1, the first question, i.e., whether an AI can be considered as inventor, should be discarded taking into account the considerations regarding legal personality of AI. There are too many ethical implications as regards equating a machine to a natural or legal persona in the sense that they can be holders of rights. Opening that debate for the time being, even for the purposes of patent law, may result in expanding that debate to other areas of law that are clearly unprepared, such as tort law and liability, tax law or labour rights.
In the case of whether a human inventor should be name, the vast majority of national and regional legislations (e.g. section 81 of the European Patent Convention) require naming a human author in the patent application. We suggest two different options:
1. Considering that the inventors of the IA solution are, at least indirectly, inventors of the AI-generated invention. Even though they may have not directly taken part in the development of the invention and even if the AI has a high level of autonomy and unpredictability, they are responsible for the very existence of the AI system and, therefore, eventually holders of the right to be considered as inventors. Perhaps arrangements can be made in the regulations regarding patent applications that force the applicant to indicate that the invention has been generated by an AI; and
2. Amending the current regulations to eliminate the requirement to name an inventor in the case of AI-generated inventions, in case an human inventor cannot be identified because the invention cannot be reconducted to a natural person.
As regards the question of ownership, we strongly suggest that the issue of employee developed patents is raised. The applicant of a patent, and therefore is primary owner, is not necessarily (and in practice, not usually) the inventor, but the company or legal entity for which that inventor works or renders services. We believe that a similar scheme might be applicable to AI-generated inventions. This idea combined with the elimination of the requirement to name a human inventor in these types of inventions may help to better address the problem of inventorship and ownership of patents created by an AI system.