Artificial Intelligence (AI) is poised to be the next game changer. The future lies in intelligent machines performing high-level cognitive processes like thinking, perceiving, learning, problem solving and decision making. This coupled with advances in data collection and aggregation, analytics, and computer processing power would permit AI to complement and supplement human intelligence and enrich lives around the world. In pursuit of AI leadership, the Indian government has announced several policy initiatives to encourage greater investment in AI research and support AI start-ups. The steady rise in the number of AI patent applications being filed in the country is a testament to the increasing innovative activity in this sphere (read our recent article on Indian AI patent filing statistics here: https://www.remfry.com/wp-content/uploads/2021/08/1.-AI-Patent-Trends-1.pdf).
The growing importance of AI was also recognised in a 2018 paper by the NITI Aayog, a premier policy think tank of the Government of India, which dwelled on the issues of AI and patents and acknowledged that, “despite a number of government initiatives in strengthening the IP regime, challenges remain, especially in respect of applying patent laws to AI applications – given the unique nature of AI solution development.” More recently, in a July 2021 Indian Parliamentary Committee Report (refer to our previous post here), Parliamentarians addressed the issue of IP in general and AI in particular, and stated that AI related innovations might add upwards of 950 billion USD to the Indian economy by 2035. The lawmakers further added that “in order to extract benefits from AI, revisiting of IPR legislations and implementing a strong IPR framework is desirable.” The said Report proposes that “protection of both AI-generated works and AI solutions should be permitted under patent laws of India”. However, it bears mention that neither the expression ‘AI-generated works’ nor ‘AI solutions’ has been defined in the Report which enhances the challenge in understanding the full ramifications of the proposals laid out in the Report.
Under current Indian law, two significant issues arise vis-à-vis AI inventions. The first pertains to inventorship/ ownership and the second relates to Section 3(k) of the Patents Act, a provision that seeks to preclude patentability of “a mathematical or business method or a computer programme per se or algorithms.” With respect to the former issue, the Report mentions that the Indian patents statute is not “well equipped to facilitate inventorship, authorship and ownership by Artificial Intelligence”. It calls for a review of the Patents Act on a priority basis stating that human inventors hinder the patenting process of AI induced innovations. However, the Report does not elaborate further on how humans hinder the patenting process, and also does not recommend how this issue of inventorship may be resolved in the near future.
With respect to Section 3(k) of the Patents Act, the Report observes that a mathematical or business method or computer programme or algorithms run by Artificial Intelligence are unlikely to be considered patentable. In an endeavour to resolve this issue, the Report proposes that mathematical methods and/or algorithms be linked to a tangible technical device or a practical application – thereby avoiding a blanket ban on AI inventions. This, for one, seems to be a move in the right direction if the desired outcome of increasing innovative activity in the AI sphere is to be achieved.
Overall, though the recommendations in the Report are well-intentioned, they fall short of suggesting ways of implementing the recommendations and, therefore, currently serve the purpose of creating points for further deliberation, which we may see in the near future. On a related note, the Department for Promotion of Industry and Internal Trade (DPIIT) had scheduled a stakeholders meeting on October 20 inviting the feedback/views with respect to certain provisions of Section 3 of the Patents Act, but not Section 3(k). If issues relating to AI patents are to be addressed with the urgency they merit, serious studies and discussions ought to be on the anvil in their regard as well. For the time being, it may be easier for humans to be granted inventorship and ownership for creation of AI inventions. After all, this would serve a dual purpose – provide the necessary incentive to invent but also fix accountability in the event anything goes wrong!