Author: Simone Milli

Artificial Intelligence (AI) has been paving the way to unprecedented scenarios, thus leading the world of intellectual property into framing several questions. Completely new, such scenarios escape the classification criteria so far applying to the current legislation; a great many legal experts have been asking themselves questions with the aim to adapt the current law to the changes under way.

One of the questions revolves around who the patent author and holder is when it comes to AI-generated inventions. Likewise, one may wonder who is entitled to claim the copyright when it comes to intellectual creations authored by AI.

Some people may view this scenario as still far from real and look at AI algorithms generating an invention or creation as a substantially philosophical vs. practical issue. Things, instead, are quite different.

It was recently reported that some scientists at the Massachusetts Institute of Technology have developed a powerful antibiotic capable of defeating bacteria resistant to conventional drugs with the aid of artificial intelligence.

Such breakthrough has been achieved by using a neural network capable of analyzing over 107 million molecular combinations based on just a few thousand molecules.

A question arises spontaneously: from the legal point of view, who is the inventor in this case?

Is it the AI programme based on the neural network, the programmer or the AI system trainers?

Let us go over some precedents.

The European Patent Office has rejected two patent applications,  EP18275163 and EP18275174 on the grounds that both applications designated an AI algorithm as the inventor.

As for the application EP18275163, initially the applicant Stephen Thaler had not filed the designation of inventor. When required by the EPO to put this formal shortcoming right, he subsequently claimed that the invention had been conceived of by the algorithm DABUS, a sort of intelligent machine system composed by multiple neural networks mutually interacting with the aim to generate new ideas.

According to the European Patent Office, in the case in point pursuant to Art. 81 and Rule 19 of the European Patent Convention, the inventor must be a human being and, consequently, the designation of inventor must indicate the inventor’s first name, last name and address.

The hearing held on November 18th, 2019 was concluded with the European Patent Office rejecting the application at issue on the grounds that the indication of a machine’s name (namely DABUS) does not meet Rule 19 of the European Patent Convention.

The application EP18275174, submitted by the same applicant Stephen Thaler, claiming the same “alleged” inventor (the algorithm DABUS), followed in the footsteps of EP18275163 and ended up suffering the same fate: as a matter of fact, it was rejected on the same grounds, namely that the designated inventor was an AI algorithm.

Therefore, if the European Patent Office has clarified their position about the patent right of an AI algorithm, the cases at issue have shed light on an additional question regarding the transfer of the patent right from an AI algorithm (in case it was acknowledged as the inventor) to either a natural person or a legal entity.

According to the European Patent Office (see rejection ruling of January 27th, 2020 applying to EP18275163), an AI system is bereft of the legal personality comparing to a natural person or a legal entity’s. The current legal system provides that a natural person naturally enjoys legal rights on the very grounds that they are a “human being” and a legal entity enjoys rights on the basis of a legal “artifice” allowing them to have legal rights. Nevertheless, an AI algorithm is neither a human being nor a legal entity and according to the current legal system, it cannot enjoy any right.

And that is where the problem arises: the very fact that an AI algorithm cannot enjoy any right, results into the following: not only does it have no right to be designated as the inventor or author, it cannot even claim either any right of copyright or transfer such rights (for instance the rights to exploit an invention or a copyright).

In other words, identifying an AI system as the “inventor” would imply our acceptance of the fact that an AI system cannot be compared to a natural person, while fully acknowledging legal rights to AI algorithms.

Accordingly, not only would our “anthropocentric” understanding of law change, but also the very relationship human beings entertain with man-made technology.

To date, most countries have been endorsing the position of the European Patent Office: USA, Japan, China, Korea, Germany, France, UK, in fact, have been endorsing the same position vis-à-vis the rights of AI algorithms.

Recently, (Chen 2019), also the Court of Beijing has rejected the protection deriving from copyright whose author, according to the party to the dispute, was an artificial intelligence system.

As to copyright, the USPTO has claimed that: “the Office will not register works produced by a machine or mere mechanical process that operates randomly or automatically without any creative input or intervention from a human author” (cf. Compendium of U.S. Copyright Office Practices Chapter 300, S. 313.2).

Regarding the recognition of copyright for intellectual creations, the various offices seem to share an overall similar position.

In the case in point, as early as today the applications go well beyond the imagination of moderately informed people: by way of example, a few are described below.

Next Rembrandt is a software developed for generating new art images based on paintings by the painter Rembrandt it has saved.

Aiva, instead, is an AI-based platform which, based on an archive of soundtracks and artificial intelligence algorithms, allows to generate new musical compositions.

Notably, presented with an ever-growing number of advanced artificial intelligence systems allowing to generate creative or inventive content, in the years to come we will have to reappraise our “legal certainties” in order to respond to the technological breakthroughs and evolution under way.


© BUGNION S.p.A. – March 2020