Artificial intelligence (AI) is becoming more and more part of people's everyday lives. Conversational AI such as Amazon’s Alexa is already being used frequently in many households. AI is, however, not limited to computers that talk. Nowadays, AI is even capable of creating patentable inventions. This raises the question who is the inventor of respective inventions. The owner of the AI? The person using it? The designer or creator of the AI? Or even the AI itself? Perhaps the invention might not even be patentable after all due to the fact that there is no human behind it who meets the requirements of inventorship under current patent law?
AI and Inventorship
Although there is no explicit definition of inventorship in the European Patent Convention (EPC), the common understanding is that inventors need to be natural persons (cf. section 60 para 1 EPC). The inventor is the person who creates the invention. The invention derives from an intellectual act of creation by the inventor. Therefore, a person who simply follows instructions by someone else may not be regarded as a (co-)inventor. This applies to corporations as well. The concept of inventorship in European patent law is based on the idea that there must be an act of intellectual creation by a natural person.
The system used as an instrument to make an invention may be characterised as “intelligent” and it might even have the capacities of a human inventor. A nonhuman entity that contributed to the act of creation can, however, not be elected as an inventor under current European patent law. There cannot be an invention without a human inventor (see Moufang in Schulte, Patentgesetz mit EPÜ, 10th ed. 2017, § 6 PatG/Art. 60 EPÜ, no. 18).
There are typically several natural persons involved in the creative process performed by an AI that may be considered as the actual inventor: users, designers or creators, perhaps even the owner of the AI computer programme.
There is no need to break with the common understanding of the concept of inventorship under European patent law and appoint the owner of the system to being the inventor of the solution which its AI system created. The overall purpose of patents is to promote the incentive to invent and disclose inventions. The mere owner of an AI system does not follow these incentives. So far, it is not the purpose of patent law to reward the owner of intelligent computer systems in the first place.
Computers have been used to help create new inventions for a long time. In fact, prior inventions have always been used to create new inventions, including computer implemented inventions. If a natural person identifies a problem and comes up with a solution assisted by an AI system, it will still be the natural person who is the inventor of the output delivered by the AI.
As long as there is at least a small extent of human involvement in the process of the invention, the invention will be assigned to the user of the AI system from a legal point of view.
Bringing it to a head, human involvement could even be limited to switching on the system and/or reading the results. It follows that the concept of inventorship becomes more and more disputable the smaller the human contribution gets. If human contribution only consists of activating the AI system and/or reading its results, one may argue that it will not fulfil its purpose anymore.
AI and patentability
Moreover, computers could even revolutionise the standard of patentability itself. Until now, an invention is defined as being a new and inventive solution over the existing prior art. The inventive step is denied if a hypothetical person having ordinary skill in the art and being familiar with all prior art, would have identified the solution as “obvious”, as a proper solution without performing any innovation.
Therefore, replacing the hypothetically informed "skilled person" by a "skilled computer" which is actually aware of all prior art could help to separate merely obvious machine and human creations from the truly innovative ones. On the other hand, it is likely that due to the increased “obvious” knowledge this process would significantly more often end up in the rejection of inventiveness for inventions that seem extraordinary today.
AI is becoming more and more important on the patent landscape. The fast evolution of artificial intelligence and related patent applications leads to specific challenges for patent practitioners and industries. Problem solutions by AI are thereby both relevant in terms of patentability of computer implemented inventions and inventorship for inventions made with assistance of AI. In addition AI assisted examination could lead to stricter review of patent applications in general.