[co-authors: Marek Oleksyn, Sołtysiński Kawecki & Szlęzak]
AI - a rushing snowball
Human intelligence has developed over thousands of years. Meanwhile, AI, including deep learning algorithms, is the result of just a few decades of work and development. There is no doubt that this snowball cannot be stopped. Artificial intelligence already has a huge impact on key areas of the economy. It also raises a number of critical legal issues, including those relating to innovation and creativity, faced by states, regulators and competent authorities across the globe. One of the most current legal challenges in this field is the admissibility and conditions for patenting inventions made by or with the use of artificial intelligence algorithms.
What exactly is AI?
To better understand this issue, it is worth bearing in mind that in the legal, technological and economic space there are different definitions and ways of understanding the concept of AI. A fresh approach to defining AI (or - rather - AI system) was presented this year by the European Commission in its proposal for the Artificial Intelligence Act (Regulation) of April 21, 2021. According to this document an AI system means software that is developed with one or more of the techniques and approaches and can, for a given set of human-defined objectives, generate outputs such as content, predictions, recommendations, or decisions influencing the environments they interact with. Under the proposed law – such techniques and approaches are to include not only machine learning but also logic- and knowledge-based and statistical approaches as well as Bayesian estimation and search and optimization methods. However, the proposed EU Artificial Intelligence Act deals with other issues - and the unified definition of AI system proposed in it may also have an impact on the assessment of who is the actual author (or co-author) of the invention being filed for patenting.
DABUS case before courts and patent authorities
The issue of the admissibility of patenting inventions made by AI has already received some case law in Europe. The trailblazer in this respect is the case of inventions made by an AI machine called DABUS - created and owned by Dr. Stephen Thaler. He filed patent applications, among others, with the European Patent Office and the UK Intellectual Property Office. The applicant explained in his patent applications that the inventor was an AI machine (DABUS) and that he had acquired the right to patents by ownership of this machine. This approach was not accepted by the patent authorities which explained, among others, that DABUS – being a machine – cannot be regarded as an inventor. The patent applications were refused. Dr. Thaler appealed against the decisions issued by the UK IPO and the EPO. The England and Wales High Court of Justice (in September 2020) and the Court of Appeal (in September 2021) dismissed Dr. Thaler’s appeal and denied grant of the patent. Both judgments present many interesting considerations regarding the conditions for granting a patent as well as an entity authorized to file patent application. Although they relate to the UK patent regulations, many of the comments presented seem to be of a more universal nature.
Referral to the UK Supreme Court is still possible here. In turn, the oral hearing before the EPO Board of Appeal is scheduled for December 2021.
A litmus test for AI-made inventions?
The DABUS case in Europe certainly has not had its final touch yet and the world of patent practitioners will follow its further development. The matter appears to be a litmus test for similar cases in the future and may significantly affect the scope and timing of changes to the relevant statutory rules across Europe of filing applications for inventions created by AI.