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Appreciating the growing importance of AI in various fields as well as its economic impact, the Parliamentary Standing Committee Report (hereinafter the Report) recommended the ‘revisiting of IPR legislations and implementing a strong IPR framework’ in order to ‘extract benefits from AI’. (Pg 38) The Report relying on a research report by Accenture stated that AI related innovations might add USD 957 billion to the Indian economy by 2035. The Report does propose a bigger picture, but fails short of discussing any real issues or providing any implementable suggestions.
Many glaring issues presented by the Report have been previously discussed by Prof Scaria (here), Praharsh (here), Adyasha (here) and Namratha (here and here).
In this post, I will be analysing the recommendations pertaining to the amendment of patent laws in order to facilitate inventorship and ownership by AI. I will be restricting the discussion to the evaluation of the Indian patent regime, as the implications of AI on Indian copyright law has been previously dealt with here. The Report has also recommended the amendment of Section 3(k) of the Patents Act, 1970 and this will be analysed in a future post.
Recommendations vis-à-vis Inventorship and Ownership
The Report states that the stakeholders have recommended that ‘the protection of both AI-generated works and AI solutions should be permitted under patent laws of India’ as it would contribute to the nation’s economic growth. The terms ‘AI-generated works’ and ‘AI solutions’ have not been explained in the Report, but its pertinent to define and distinguish the same in order to understand their implications on patent law. According to WIPO’s Revised Issues Paper on Intellectual Property Policy and Artificial Intelligence, AI-generated works refers to any inventions created by AI without any human intervention. ‘AI solutions’ has not been discussed in WIPO’s paper or defined properly anywhere else and it’s impossible to discuss any possible amendments for accommodating it without knowing the meaning.
An important observation made by the Committee was that the Patents Act, 1970 is not ‘well equipped to facilitate inventorship… and ownership by Artificial Intelligence’ and has recommended the reviewing of Patents Act, 1970 on a priority basis.
An important question that arises is can AI actually invent on its own? Well, the answer is no according to the IP Owners Association (whose members include Microsoft, Google, Apple, Oracle, IBM, etc.), which in its reply to the WIPO draft Issues Paper on IP Policy and AI stated that the question whether inventions can be autonomously created by AI ‘is still subject to debate from a technical and legal standpoint.’ There are others such as Prof Ryan Abbott who argue that AI is capable of inventing on its own, i.e., without any human help and should be granted inventorship. But even if an AI invents something, isn’t it the human being who recognises the invention’s value!
Leaving technical advances aside, let’s discuss the same from a purely legal standpoint with the assumption that an AI can be capable of autonomously generating inventions. The human inventor condition can be found in Section 6(1)(a) of the Patents Act, 1970, which provides that the application for a patent can be filed ‘by any person claiming to be true and first inventor of the invention’. (emphasis supplied) The basic requirements for an invention to be patentable are: novelty, inventive step and industrial applicability. In the definition of ‘inventive step’ under Section 2(1)(ja) of the Patents Act, 1970, it has been stated that an invention should not be ‘obvious to a person skilled in the art’. This standard might have to be re-examined in case of AI-generated inventions, maybe an algorithm might need to be replaced with human beings.
The Report suggests doing away with the human inventor requirement under patent law, as it ‘hinders the patenting of AI induced innovations in India’. In India, the inventor is the first owner of an invention and generally, it is through an assignment agreement that the employer becomes entitled to register the patent in his name. (discussed here and here) This means that in order to designate an AI as an inventor and/or owner, it would have to be capable of receiving, owning, transferring and assigning the invention to anyone. And all of these actions are impossible without the AI possessing some kind of a legal personality.
Granting AI inventorship and ownership, is not as simple as amending a few provisions in the patent law. There are tons of questions that need to be considered when attempting to change the law for allowing AI to be designated as an inventor and/or owner. One of the most important issues being the lack of a legal personality. The Report has also suggested that if patent protection is granted for autonomously generated inventions by AI as well as AI solutions, it will ‘incentivize and encourage the creator of the AI which in turn would further encourage creativity and development of more AI solutions’. But does AI need to be incentivized in order to encourage innovation? It does not share the same motivations as human beings do. What purpose would granting AI ownership even serve? In order to encourage development of more AI-related inventions, is it necessary to actually grant ownership to AI itself? How is an AI supposed to negotiate the terms with its patent lawyers? How would an AI enforce its rights in case of infringement if it’s both the inventor and the owner? Other factors such as the AI’s human inventor’s incentivization, the employer’s interests also need to be considered. There has been no serious engagement with any of the above questions.
Responsibility and judgement are also pertinent issues that have to be dealt with. Responsibility refers to an AI’s ability of fulfilling its responsibilities and duties, while judgement refers to an AI’s ability of making subjective decisions that require judgement. An Uber self-driving car killed a woman in the US, but the issue did not reach the courts, as the parties reached a settlement. Even if you grant a self-driving car legal personhood, how would you hold it legally responsible for its actions? Even if personhood is granted to AI, how will you ensure that the AI fulfils its obligations? The sanctions that work in the case of humans, won’t work on AI.
Legal Personality for AI
The readers might remember that in 2017, Sophia, a robot was granted citizenship by Saudi Arabia. As great as this sounds, a robot lacks many qualities associated with humans, such as it does not have free will, interests or a soul. It is imprudent to give a robot or an AI the same rights as a human being, without properly examining the legal implications of the same. AI does not share the same attributes as humans, and perhaps, a different kind of legal status ought to be created keeping in mind their unique nature. The Report has also recommended that ‘a separate category of rights for AI and AI related inventions and solutions should be created for their protection as IPRs.’ (emphasis supplied)
In 2017, the European Parliament adopted a resolution wherein they considered the possibility of a separate legal status for robots. They recommended:
‘creating a specific legal status for robots in the long run, so that at least the most sophisticated autonomous robots could be established as having the status of electronic persons responsible for making good any damage they may cause, and possibly applying electronic personality to cases where robots make autonomous decisions or otherwise interact with third parties independently;’ (emphasis supplied)
‘Electronic persons’ or some other kind of special status will have to be created in order to accommodate AI within the existing system. A sui generis system seems like an ideal solution.
Worldwide Developments Relating to AI and Patents
Stephen Thaler had created an AI titled ‘DABUS’ and according to him, DABUS has created two autonomously generated inventions (a flashlight and a food container). Patent applications naming DABUS as the inventor have been filed in multiple jurisdictions around the world. Recently, South Africa became the first country in the world to grant a patent to an AI (DABUS) for an invention autonomously created by it. A few days ago, even the Federal Court of Australia held that an AI can be granted the status of an inventor. Here, I would like to differentiate between the situation in India and the other countries. Unlike India, South Africa’s patent office does not engage in substantive search and examination. And the main difference between India and Australia’s patent regime is that Australia does not have a human inventor requirement.
In the UK, the IPO rejected Thaler’s application because DABUS didn’t qualify the human inventor condition and the England and Wales High Court also rejected the same and then, this was appealed before the Court of Appeals. The decision is yet to be delivered. The EPO also refused the grant of a patent as the inventor did not fulfil the human being requirement. The USPTO also rejected Thaler’s application for similar reasons. These efforts for granting inventorship to AI were led by Prof Abbott from University of Surrey, UK.
In India, NITI Aayog’s National Strategy For AI discussion paper, seems to be the only paper by the Indian government which has touched upon the issue of AI and patents. The paper stated that ‘Despite a number of government initiatives in strengthening the IP regime, challenges remain, especially in respect of applying stringent and narrowly focused patent laws to AI applications – given the unique nature of AI solution development.’ We are far behind the other countries, in terms of discussions about AI-generated inventions. The US and the UK had each released a call for comments for issues relating to the patenting of AI-generated inventions. WIPO had also published two Issues Papers asking questions about IP and AI and invited comments on the same.
The Way Ahead
If India wants to change its patent laws for AI, it will have to undertake a serious study. Relevant questions would need to be identified and considered, as well as the reasons for considering these questions. Only after an in-depth evidence based study, should any amendments be discussed.
One of the changes could be to allow the employer to directly become the owner of his employee’s inventions, analogous to Section 17 under the Copyright Act, 1957. Section 10(4)(b) of the Patents Act, 1970 pertains to enablement requirement or sufficiency of disclosure and under this section, the ‘best mode’ of performing an invention has to be disclosed. Let’s say if an AI is capable of inventing autonomously, a potential problem with patenting such inventions would be that it’s difficult to know what’s going on inside the AI, i.e., lack of transparency. Under Section 64(1)(h) of the Act, 1970, a petition can be filed for the revocation of a patent, if the complete specifications regarding the working of an invention are found to be insufficient. After a proper study, if it is concluded that AI is capable of autonomously generating an invention, then the disclosure requirement will have to be reconsidered in order to accommodate the AI’s unique nature. Another thing would be to figure out some kind of legal personality for AI.
The Report suggests that AI-generated inventions and AI solutions should be granted protection under the existing laws ‘as it would incentivize innovation and R&D thereby significantly contributing to creativity and economic growth of the country.’ I think AI solutions and AI-generated inventions would still contribute to the economy’s growth, even if they are not granted inventorship and/or ownership. For now, isn’t it better if humans are granted inventorship and ownership for their AI’s inventions? This way it would be easier to hold someone responsible for the damage they might cause. Another question is regarding incentive, if AI is granted ownership what will be the human creator’s incentive?
The recommendations, though well-intentioned, lack details and do not seem to be well-thought out. The Report barely seems to have scratched the surface, as changing the law for granting AI the status of an inventor/owner is not an easy task. This will require a lot of research, time and money. But more importantly, do we really need to change the patent laws now!