As the sophistication of Artificial Intelligence (AI) technologies increases, some are beginning to wonder whether AI itself might become an inventor. This topic became the subject of discussion at the first European Patent Office (EPO) conference on “Patenting Artificial Intelligence”. Held in May of 2018 in Munich, the conference was attended by over 350 representatives from government, national patent offices, the judiciary, patent law firms, user associations, academia and industry.
The EPO is working to improve clarity around AI patenting
In an article outlining the rise of AI and its’ increasing presence in the creation of patents, the EPO detailed how delegates and EPO officials at the 2018 event considered how patentability requirements might be applied to inventions in the field of AI. For example, will the concept of who the person skilled in the art change because of the expansion of AI technology?
The EPO has undertaken several initiatives to clarify and improve understanding in the area of legal certainty around AI patenting. An academic study on AI inventorship commissioned by the EPO as well as discussions with the EPC contracting states show that the patent system is well equipped to deal with technical developments in the field of AI.
How inventors should be determined where AI is involved
The EPO cited a study by Dr. Noam Shemtov of Queen Mary University of London which addressed the question of how inventors should be determined where AI is involved.
The study examined the patent regime of the EPC, as administered by the EPO, as well as eight additional jurisdictions: US, China, Japan, Korea, the UK, Germany, France and Switzerland.
In none of these jurisdictions is AI considered an inventor under patent law. Rather, the objective of each of these jurisdictions is to identify the person responsible, in whole or in part, for what is the “intelligent and creative conception of the invention”.
Ultimately, AI cannot be an inventor
There is no rationale in any of these jurisdictions, therefore, for an AI system to receive attribution for an invention as a moral right of attribution applies to human inventors, not AI systems, the report details. Entitlement enquiries refer to concepts such as ownership and employment, and neither concept applies to AI systems in law, as AI systems cannot own property or be party to employment relationships.
In simple terms, therefore, AI cannot be an inventor.