Artificial Intelligence and Patent Law: Navigating the Landscape in 2023
AI (Artificial Intelligence) is much more than stories of robots that look and sound like humans. In fact, until today, no technology is remotely close to approach the ability of a human. No machine with self-sustaining long-term goals has been developed and it is not likely to be developed in the near future. Yet, AI is one of the most widespread and successful inventions in the history of humanity. Technology is developing ten times faster than it used to, this constant development cause that people do not often register their improvement and penetration. AI has become a disruptive technology that has contribute to change how society is configurated by bringing far-reaching changes to all aspects of human’s lives. The year 2022 marked a significant milestone in the evolution of AI and its intersection with Patent Law. As AI technologies continued to advance at an unprecedented pace, the legal and ethical considerations surrounding AI patents gained prominence. This article explores the developments in AI, the patent applications filed globally, the ethical risks associated with AI such as the end of privacy, and the evolving landscape of AI-related patent laws.
The origin of AI is mainly in the computer science field and its growth has been principally in commercial applications that used learning algorithms. Inventions in the field are turning away from the modeling of “human-alike intelligence” and are focusing on specific commercial robotic applications. Each of these applications took years of focused research and a careful, unique construction. Today, these AI gadgets are changing people’s daily lives in intelligent home objects such as vacuums, thermostats or refrigerators. It is running in the internet in bots that could create anything, it is present in cars and in the navigators, people used to get to work without traffic; people find normal to have touching screens and to talk to a digital assistance. AI is there improving human health with personalized medicines or accurate diagnostics. AI is improving safety with self-driving cars, and productivity with every app that makes life easier 1. However, AI also raises important ethical questions and bring social issues, including technological unemployment, the replacement of human judgement and mostly privacy concerns.
The term Artificial Intelligence refers to those computer systems capable of performing tasks that would normally require some intelligence if done by humans 2. Jacob Turner define AI as “the ability of a non-neutral entity to make choices by an evaluative process” 3. Accordingly, AI has the ability to achieve a specific task or set of tasks using techniques which qualified as intelligent. AI is developing in different fields and subfields. Of these, machine learning is the system that is experiencing the most meaningful development. It is the dominant technique with 40% of all AI related patents 4. Within machine learning the currently revolutionizing techniques are deep learning (mentions of deep learning in patent filings grew annually at an average rate of 175% from 2013-16 5) and neural network (mentions of neural networks grew annually at an average rate of 46% over the same period 6). Deep learning is becoming to be a general-purpose technology for innovators. Accordingly, major research universities devote lots of resources to AI studies, and technology companies such as Apple, Facebook, Google, Amazon, IBM, and Microsoft, spend heavily to explore AI applications that they considered critical to their futures 7.
The surge in AI innovation was mirrored by a substantial increase in patent applications globally. Companies and researchers rushed to secure their AI-related inventions, leading to a competitive landscape in patent filing. Here are some key trends in AI-related patent applications in 2022:
1. The U.S. Patent and Trademark Office (USPTO) witnessed a significant increase in AI patent applications making the United States remained a leader in AI innovation, with companies like IBM, Google, and Microsoft actively filing AI-related patents.
2. China continued its aggressive pursuit of AI innovation, with companies like Tencent, Huawei, and Alibaba filing a substantial number of patents. The Chinese government also introduced policies to encourage AI patent filings, aiming to establish global dominance in the field.
3. European countries, including Germany, France, and the United Kingdom, saw a surge in AI patent applications. The European Patent Office (EPO) reported a steady increase in filings related to AI and machine learning.
The surge in AI patent applications also brought challenges, including identifying inventorship and patent eligibility. Regarding the first one, determining the true inventors of AI-related inventions, especially when AI systems generate ideas autonomously, raised questions about inventorship. To address these challenges, authoritative bodies, including patent offices and legal courts, assume a pivotal role in the resolution of inventorship disputes. Their approach involves rigorous examination procedures that entail a thorough review of patent filings, ensuring that the rightful inventors are duly acknowledged and conferred with the corresponding intellectual property rights. For example, there is an ongoing case at EPO involving two patent applications, EP 18275163 8 and EP 3563896 9, which list an AI algorithm as the inventor. The EPO initially rejected these applications due to the applicant's refusal to designate a human inventor. The subsequent appeal includes extensive discussions on the legality and ethics of exclusive human inventorship. Interestingly, the applicant contends that EPO has acknowledged the AI algorithm as the actual originator of the inventions, despite the absence of disclosure regarding the AI's inventive processes within the patent applications 10. Also, a recent public consultation conducted by the United States Patent and Trademark Office (USPTO) on this matter witnessed a prevailing consensus that current AI capabilities do not yet encompass the capacity for invention. Many respondents asserted that existing AI technologies are incapable of innovating or authoring autonomously without human intervention. This sentiment aligns with the views expressed by the International Association for the Protection of Intellectual Property (AIPPI) in their submissions to the consultation. “The current state of AI technology is not sufficiently advanced at this time and in the foreseeable future so as to completely exclude the role of a human inventor in the development of AI inventions” 11. Furthermore, international organizations, academic institutions, and industry associations collectively contribute to the formulation of directives and optimal methodologies for ascertaining the identity of AI inventors. They often embark on the development of ethical frameworks that provide guidance for the realm of AI research and development.
On the other hand, patenting inventions related to AI presents a myriad of challenges and complexities. Patent eligibility of AI inventions is difficult since in many cases they do not fit into the accorded patentable subject matter. AI inventios are aligned to the protection given to computer implementation inventios and there is resistance in recognize them as patentable subject matter in many patent systems. In this regard, it is argued that mathematical methods, mental acts and presentation of information do not have a technical nature. However, and since patent systems are always seeking to encourage innovation and in order to preserve patent protection for meaningful advances in the AI field, patent offices have interpreted the law so to grant protection to this kind of inventions. The main premise is that AI that had factors like technical innovation and the practical application of the invention could be patent-eligible. Other challenge is that since AI inventions may involve complex algorithms and data-driven processes that are difficult to describe comprehensively, potentially impeding the requirement for full disclosure in patent applications.
While AI advancements offered numerous benefits, they also raised ethical concerns that demanded careful consideration. Several ethical risks associated with AI have come to the forefront an especially regarding privacy. A closer look on patent applications, reveals the commitment of tech companies of gathering as much as data as possible to feed artificial intelligence and then sell it as prediction products for target marketing. To name a few examples, there is a patent application that monitors the frequency of one person visiting another user's social media profile as a means of determining a potential romantic relationship 12. Similarly, a granted patent in the US outlines a method for assessing a person's personality by analyzing their social media posts and messages 13. Another patent predicts significant life events, such as births or weddings, by examining data from social media posts, messages, location information, and credit card transactions 14. Moreover, a patent application has been submitted for tracking an individual's daily routines, with an additional application aiming to deduce personal habits. Both of these applications suggest that a person's phone location data can be used to infer details like their residence, social interactions, and sleep patterns. There is even a patent application seeking to protect a method for predicting when friends or relatives will die. Accordingly, technology is turning into tracking every aspect of human life. Moreover, digital footprint tells a more accurate story of a person life than anything the person chooses to reveal about himself. All of this intimate knowledge rise serious concerns and implications since data is a source of huge profit to companies but at people’s expense since it influences their decisions, controls behavior and makes democracy a shallow promise. Privacy it is said is the price that people must pay for the abundant rewards of information, connection, and technology.
The European Commission took the first step to address AI challenges and present a complete and concrete plan for the future. The proposal was a draft named Artificial Intelligence Regulation (the “EU AI Regulation”), published on April 21, 2021. This regulation lays out a meticulous framework aimed to govern the deployment of high-risk AI systems. Concurrent|ly, it is designed to safeguard the safety and fundamental rights of EU citizens in the rapidly evolving AI landscape 15.
1 One Hundred Year Study on Artificial Intelligence (AI100) https://ai100.stanford.edu/sites/g/files/sbiybj9861/f/ai_100_report_0831fnl.pdf.
2 UK Intellectual Property Office, “Artificial Intelligence a Worldwide overview of AI patents and patenting by the UK AI sector https://www.ft.com/content/19d90308-6858-11ea-a3c9-1fe6fedcca75
3 Jacob Turner, “Robot Rules: Regulating Artificial Intelligence (2018, Palgrave Macmillan), 2.
4 The Story of AI in Patents https://www.wipo.int/tech_trends/en/artificial_intelligence/story.html (Accessed September 10, 2023)
5 Harry Surden “Machine Learning and Law” Washington law review, Vol 99.87 page 89
6 (n 4)
7 (n 1)
8 European Patent Register: https://register.epo.org/application?number=EP18275163
9 European Patent Register: https://register.epo.org/application?number=EP18275174
10 EPO refuses "AI inventor" applications in short order - AI Inventor team intend to appeal: https://ipkitten.blogspot.com/2019/12/epo-refuses-ai-inventor-applications-in.html
11 USPTO, Public Views on Artificial Intelligence and Intellectual Property Policy (October 2020)
12 U.S. Patent Application No. 14/295543 Inferring relationship statuses of users of social network system
13 US Patent No. 9,740,752 Determining user personality characteristics from social networking system communications and characteristics
14 U.S. Patent Application No. 12/839,350 Predicting life changes of members of a social networking system.
15 Regulating AI; A work in progress https://ipkitten.blogspot.com/2021/11/regulating-ai-work-in-progress.html.
By: Teresa Aguilar