Artificial Intelligence and Patent Law

Introduction

In this modern era with a day-to-day invention which has bloomed the scientific growth, that has
led us to the new advanced machine era. With the help of different automation technologies and
human intelligence it has given rise to Artificial Intelligence. Artificial Intelligence is a part of
our day-to-day life now, it is used in almost every field in our era be it in automobile vehicles,
health care facilities, education, finance, entertainment as well as heavy work industries, these
are only small example, the web of Artificial Intelligence in is widely spread. By each passing
day AI is generating new automated machines and with much more higher capabilities then
before. The issue which arises because of cutting edge development if AI is that can the patent be
granted to the inventor of an AI for the invention done by the AI? We know that AI has the
potential to challenge the core standards of the Patent law because grating of the patent rights to
the innovation of the AI is rising and this will open the gate for patent law to widen its concept
and standard. In this article we are going to discuss further about Artificial Intelligence and
Patent Law.

Artificial Intelligence

Intelligence is notoriously difficult to define. When two dozen prominent theorists were asked to
provide a description of the term, they gave an equal number of “somewhat different”
definitions.1 Likewise, defining artificial intelligence (AI) is not an easy task. There is no
uniform or universally agreed definition,2 Artificial Intelligence in a wide concept it includes
many subtypes such as machine learning, natural language processing and generic programming
and each of these subset’s function differently. However, in more simple terms you can say that
Artificial Intelligence is combination of algorithms which mimic the human brain’s cognitive
function.3 Some of the popular examples of AI used now days are like Alexa, it is product of
amazon which autonomously responds to your questions and does whatever you say, it interacts
in a similar way as a human does. Other one is a robot named “Sophia” which has been granted a
1
Neisser U et al, “Intelligence: Knowns and unknowns” 51 American Psychologist 77 (1996).
2
Dr Noam Shemtov, “A study on inventorship in inventions involving AI activity” (2019), available at:
http://documents.epo.org/projects/babylon/eponet.nsf/0/3918F57B010A3540C125841900280653/$File/
Concept_of_Inventorship_in_Inventions_involving_AI_Activity_en.pdf (last visited May 2, 2021).
3
Enrico Bonadio, Luke McDonagh & Plamen Dinev, “Artificial Intelligence as Inventor: Exploring the
Consequences for Patent Law" 48-66 SSRN 1 (2021).
citizenship in Dubai, this robot functions and thinks like a human. Many other AI generated
products are already being used in different areas which are essential for our day-to-day life like
medical, education, automobile vehicles etc. AI is gradually being used to increase the inventive
output, AI has developed so much in such a short time and it is still developing day by day,
generating new algorithms and making the machines with better capabilities than before.

Seeing all these innovations and developing cutting edge technology World Intellectually
Property Organization (WIPO) in its second session of WIPO Conversation on Intellectual
Property (IP) and Artificial Intelligence (AI) mentioned that “Artificial intelligence (AI) has
emerged as a general-purpose technology with widespread applications throughout the economy
and society. It is already having, and is likely to have increasingly in the future, a significant
impact on the creation, production and distribution of economic and cultural goods and services.
As such, AI intersects with intellectual property (IP) policy at several different points, since one
of the main aims of IP policy is to stimulate innovation and creativity in the economic and
cultural systems.”4 By this statement it clarifies that WIPO took into consideration of the aspects
of Intellectual Property which is related to patent law in which little or no human involvement is
there in an inventive process, like the technologies produced by the AI. Similarly, many
countries have also recognized the gap between areas and laws which demand further
examination of unexplored areas in the patent law which questions the patentability of AI and
provide legality to AI.

Patent law and Patentability of AI

4
World Intellectual Property Organization, “WIPO Conversation on Intellectual Property (IP) and Artificial
Intelligence (AI)” WIPO/IP/AI/2/GE/20/1 Draft Issues Paper, available at:
https://www.wipo.int/edocs/mdocs/mdocs/en/wipo_ip_ai_2_ge_20/wipo_ip_ai_2_ge_20_1.pdf
5
Shubhangi Sharma, “Patent laws in India: basics you must know”, iPleaders, (2019), available at:
https://blog.ipleaders.in/what-is-a-patent-law-in-india/ (last visited May 2, 2021).
The European Patent Convention (EPC)6provides a legal framework for the granting of European
patents. In terms of subject matter, the EPC excludes from patentability, inter alia, discoveries,
mathematical methods, mental acts, and computer programs but “only to the extent to which a
European patent application or European patent relates to such subject-matter or activities as
such”.7Some scholars argue that granting patent rights to AI-generated inventions would create a
bridge for new and advanced innovations which would be difficult to achieve through human
inventiveness solely, on the other hand many other say that granting patent protection to AI-
generated inventions will raise the cost of research and development, increase the monopolies,
thereby impeding innovation.8
According to section 3(k) of Indian Patent Act there is an absolute ban on patentability of
computer programme and computer-generated algorithms unless it provides a technical
contribution.9 Then, the instructions in the Revised Guidelines are exemplified by saying that the
mere presence of a mathematical equation in a claim would not render it a mathematical
method.10
Also, recently in case Ferid Allani vs Union of India & Ors 11 the court held that “The bar on
patenting is in respect of 'computer programs per se….' and not all inventions based on
computer programs. In today's digital world, when most inventions are based on computer
programs, it would be retrograde to argue that all such inventions would not be patentable.
Innovation in the field of artificial intelligence, blockchain technologies and other digital
products would be based on computer programs, however the same would not become non-
patentable inventions-simply for that reason. It is rare to see a product which is not based on a
computer program. Whether they are cars and other automobiles, microwave ovens, washing
machines, refrigerators, they all have some sort of computer programs in-built in them. Thus, the
effect that such programs produce including in digital and electronic products is crucial in

6
European Patent Convention (Convention on the Grant of European Patents)1973
7
Article 52(2) EPC
8
Sana Singh and Sonil Singhania, Redefine Intellectual Property With Artificial Intelligence, mondaq, (2021),
available at:
https://www.mondaq.com/india/patent/1036180/redefine-intellectual-property-with-artificial-intelligence (last
visited May 3, 2021).
9
The Patents Act, 1970
10
Anshul Sunil Saurastri and Divyendu Verma “Reviewing key aspects of Indian Patent Law in view of AI related
inventions” Lexology, February 11 2021
11
Ferid Allani vs. Union of India and Ors. (12.12.2019 - DELHC) : MANU/DE/4323/2019
determining the test of patentability.” 12 This case tipped in the favor for the patentability of the
inventions related to AI, but still, it didn’t examine the finer aspects and possibility of
patentability of AI. In order to understand the possibility of patentability of AI related inventions,
one needs to recognize that an AI related invention is not a single invention but a combination of
several. It could be a computational or a mathematical method or an algorithm or a combination
of both.13
There are still many unexamined questions which arise here like who should be given the
ownership of the invention produced by an AI? What if AI autonomously develops an invention
that infringes the right of the other person’s invention, who to blame then?

Conclusion
On a concluding note, it is proposed that IP should revisit and widen its scope to understand the
importance of AI and examine the finer aspect of the law for the patentability of AI. While it will
possibly take a very long time to truly address the full scope of Artificial Intelligence, the
remarkable abilities these machines display everyday have lodged the idea of a machine-led era
of innovation in the intellectual sphere14. Bringing the law in conformity of present-day
developing technologies and invention would provide for better future of the world.

12
IBID
13
Lynn Lazro, India: Artificial Intelligence In The World Of IP, mondaq, (2020), available at:
https://www.mondaq.com/india/patent/892134/artificial-intelligence-in-the-world-of-ip#:~:text=Artificial
%20Intelligence%20(AI)%20in%20the,left%20some%20open%2Dended%20questions. (last visited May 2, 2021).
14
Amit Aggarwal, AI and intellectual property rights:Redefining patent laws in India, The Economic Times,
December 19,2019