Is AI capable of an Invention…Yet?

Why does the law need an overhaul?

Non-obviousness
Determining non-obviousness is essential in the patent process. These evaluations are performed by people skilled in the field of the “art” to which the invention belongs. So, when an inventor is AI, we’re going to need a new set of “AI skilled in the art”. Yes? Yes. 

Disclosure
Machine Learning is a huge component of AI. Algorithms are trained with previously generated data, with which the algorithm learns skills and parameters that it applies to new data to perform its functions. The performance of the algorithm/AI thus changes with the training data that it is fed. This means that AI is constantly evolving. The thumb rule of patents is full disclosure in the patent application. With a constantly evolving algorithm, that becomes impossible. Will the disclosure of the initial algorithm ever be sufficient for the full disclosure of the invention?

Licensing/transfer challenges
Assuming we overcome challenges posed to laws in the patent application process vis a vis AI, what happens if a patent is successfully granted? The purpose of IP is to promote innovation by creating an atmosphere where such innovation is rewarded. One such mechanism is licensing and transfer of IP. The law is designed for such transactions to be carried out by legal persons, simply put, human beings. The challenges that AI authorship pose thus go beyond an IP law overhaul but extend to a change in-laws on a much larger scale.  

How the world is looking at AI through the IP lens

USA
A report on AI and IP Policy released by the USPTO details the lacuna in the law as is, and possible changes. The Report acknowledges that US patent law is replete with language indicating that an inventor must be a natural person. The report was opened up to comments and from the responses received, the following could be ascertained:

The assumption is that AI technology is incapable of conceiving an innovation by itself. The report goes on to state that “the use of an AI system as a tool would not preclude the natural person from qualifying as an inventor (or joint inventor). While the possibility of AI ownership in the future is examined, it seems that most people believe that Artificial General Intelligence that needs to be reached for AI to think and invent on its own is in the distant future. Consequently, the consensus reached was that there is no immediate need to change the law. 
One major concern was the threshold of non-obviousness that people believed AI had the potential to affect. Accordingly, the same needs modification to cater to AI intelligence beyond the “ordinary skilled artisan” threshold. 

EU
The EPO is of the same view as the USPTO in terms of the main function of intellectual property rights being to protect the interest of human creators and encourage innovation. Certain AI-generated works, the EPO believes may be construed as “intellectual works” and be capable of copyright with the ownership assigned to an ultimate human creator.
The European Union is coming up with an AI Regulation that proposes to regulate AI use cases. The draft rules propose fines of up to 4% of global annual turnover (or €20M, if greater) for a set of prohibited use-cases.

China 
China is one of the biggest players in the AI arena. In July 2017, China’s State Council released the country’s strategy for developing AI titled New Generation Artificial Intelligence Development Plan that outlined China’s aim to be a world leader in AI by 2030. China aims to monetise AI into a trillion-yuan industry and to emerge as the driving force in defining ethical norms & standards for AI. 

This is the gist of China’s AI Plan:

• Creating an AI industry worth more than 150 billion yuan (approximately 21 billion dollars).
• Establishing initial ethical norms, policies and regulations for vital areas of AI and codifying laws around the same.
• Being a world leader in some technologies and applications by 2025.
• Increasing the net worth of the AI industry to over 400 billion yuan (approximately 58 billion dollars).
• Becoming the world’s innovation centre for AI by 2030.

We are all trying to keep up with AI advancements while being responsible for the same. What a time to be alive! We are also at a stage where we really do have more questions than answers. Will the law be able to keep up with AI advancements? Only time will tell!