“AI BREAKTHROUGHS AND PATENTS: DEMYSTIFYING INDIA’S PERSPECTIVE”

Sneha Chauhan,

Vivekananda Institute of Professional Studies - Technical Campus, Delhi

INTRODUCTION

In the ever-evolving landscape of technological advancements, Artificial Intelligence (AI) stands out as a crunch point. From revolutionizing industries to amplifying daily life, AI’s impact is undeniable. It has not only transformed the industrial sector but also made far-reaching changes in the innovation sector which includes environmental technology, industrial biotechnology, information and communication technology, etc. Yet, this major transformation raises a pivotal question: Whether an AI-generated invention can get Patent protection?

The patentability of AI-generated inventions is a complicated and evolving issue. This complex issue got attention when Dr. Stephen Thaler applied for patent protection for two of the inventions incorporated by an AI machine named DABUS (Device for the Autonomous Bootstrapping of Unified Sentience)[[i]].  But later the Federal Court of Australia, consisting of the five-judge panel held that an AI system couldn’t be named the inventor. Thus, the question of whether an AI as an inventor can get patent protection or not is a central issue. This blog discusses the position of patentability of AI-generated inventions in the Indian context and discusses various challenges and solutions.

THE INTERSECTION OF AI AND PATENTS

Before going into the deep dive discussion on intervening of AI and patents, we should understand their basic meanings. 

John McCarthy in his 2004 paper defines Artificial Intelligence as “It is the science and engineering of making intelligent machines, especially intelligent computer programs. It is related to the similar task of using computers to understand human intelligence, but AI does not have to confine itself to a methods that are biologically observable” [[ii]]. Artificial Intelligence (AI) is a technology that enables digitally controlled computers and robust datasets to perform various breakthrough functions and is a replication of human intelligence.

According to the World Intellectual Property Organization (WIPO), “A patent is an exclusive right granted for an invention, which is a product or a process that provides, in general, a new way of doing something, or offers a new technical solution to a problem.” [[iii]]

AI’s growth has reconstructed innovation, driving inventors and businessmen to push perimeters and craft groundbreaking AI inventions. Protecting these creations is vital for the increasing advancements in the world which lead us to the realm of patents. Patents, a mainspring of IP protection, give an exclusive right to the inventors to protect their creativity which in turn fosters innovations. But whether an innovation generated by an AI machine can get patent protection or whether an AI machine can be termed as an inventor is still a debatable question.

CRITERIA FOR PATENTABILITY IN INDIA

In India, the Patents Act, of 1970[[iv]], lays the preliminary work for patent eligibility. According to Section 2(1)(j), "invention" means a new product or process involving an inventive step and capable of industrial application [[v]]. It means an invention which is to receive patent protection needs to meet these criteria:

1.  Novelty:

The invention should be novel, and which is not already in existence. Section 2(1)(I) of the Act, 1970 defines new invention as: “new invention” means any invention or technology which has not been anticipated by publication in any document or used in the country or elsewhere in the world before the date of filing of patent application with complete specification, i.e., the subject matter has not filing in public domain or that it does not form part of the state of the art. [[vi]]

2. Non-obviousness Requirement:

The invention should be non-obvious or possess an invention step which brings some advancements. Section 2(1) (ja) of the Act, 1970[[vii]]defines inventive step as: “inventive step” means a feature of an invention that involves technical advance as compared to the existing knowledge or having economic significance or both and that makes the invention not obvious to a person skilled in the art. 

3. Industrial Application requirements:

The invention should be capable of being used in industries. It should have contained some industrial utility to be used commercially.

Indian Patents Act, 1970 does not explicitly contained the definition of an ‘inventor’. However, it focuses on the concept of inventiveness and the creation of novel products and processes. Moreover, it is important to mention that Section 2(1)(s) of the Act[[viii]] specifically defines that the person who is filing for a patent may be either a ‘natural person’ or ‘any Government Organization’. It can also be interpreted that anybody who is the first and true inventor of the invention can qualify as a ‘person’ claiming a patent protection under Patents Act, 1970.

RECENT TRENDS AND DEVELOPMENTS

Various offices such as United States Patent & Trademark Office (USPTO), Japanese Patent Office (JPO), and European Patent Office (EPO) issued separate guidelines to examine AI-related inventions but till now Indian Patent Office (IPO) has not issued these separate guidelines. These inventions are examined as per the Computer-Related Inventions Guidelines 2017[[ix]].

Also, in India, Section 3(k) of the Indian Patents Act, 1970[[x]] examined AI-related inventions based on the subject matter exclusions. Section 3(k)[[xi]] describes the patentability of “mathematical methods, business methods, computer programs per se, and algorithms”. These methods and algorithms are not considered to be inventions.

The Controller General of Patents of India raised objections against a recently AI-generated invention named DABUS which has a patent application numbered 202017019068. The Controller General of Patents raised objections in an Examination Report against DABUS by asserting that it failed to pass a thorough and technical review under Sections 2 [[xii]] and 6[[xiii]] of the Patents Act, 1970. As DABUS cannot be recognized as a person under Section 2 (1)(s). The same was by various legal precedents in the Indian context, such as in V.B. Mohammed Ibrahim v. Alfred Schafraneck, And Ors. [[xiv]], it was held by the Karnataka High Court that neither a corporation nor a financing partner can be the sole applicant claiming to be the inventor. Also, the inventor should be a natural person.

In National Institute of Virology v. Vandana S. Bhide, the Court ruled that an applicant to an inventor must have made some Intellectual essential contribution in achieving the result which leads to patent protection [[xv]]. The applicant responded to the objections that have been raised by stating that DABUS is the true inventor of the invention, and the applicant mentioned the name of the inventor when the application was filed.

India’s National Intellectual Property Rights Policy of 2016[[xvi]] underlying the significance of fostering AI-related technologies. Moreover, Computer-Related Inventions Guidelines, 2017 provides insights into patenting software which is an essential aspect of AI. These steps highlights India’s obligation to diffuse its IP landscape to the AI invention. However, the path ahead is abundant to fulfill the needs of the present demands. 

THE WAY FORWARD

The challenges kindred with the protection of AI inventions have been enhanced in the last several years due to their wide-ranging scope in each aspect of our daily lives. To level up the field of Intellectual Property, after considering the current position of India globally, the first challenge that India faces is to address the Patent protection of AI-generated inventions. The pivotal question that lies ahead that whether Artificial Intelligence deserves a status under Intellectual Property.

The first future challenge that India faces is policy issues. For example, if I invent an AI machine that further invents a product, does an AI machine deserve patent protection is a major question that needs to be addressed by introducing various policies.

The second future challenge that India is coupled with is legal issues. There is currently no law that deals with AI-generated inventions. There is also not a clear mentioning in the Indian Patents Act, 1970 that ‘who is an inventor?’. Associated with this challenge the one question that needs attention is ‘Is AI a legal entity?’.

The third one is patent infringement issues. Suppose an AI-generated invention gets patent protection and its patent protection gets infringed by someone then what will happen is a crucial question that India is confronted with.

The final yet important obstacle is the liabilities of AI. If an breakthroughs invention did collateral damage to another person or group of persons, then Who will be liable is an ultimate question that lies ahead.

Thus, to leverage AI’s capabilities, an amicable blend of innovation and Patent protection is crucial. Designing intelligible patent protection guidelines for AI, proper implementation of these policies, rules, and regulations, and fostering interdisciplinary collaboration are the needs of the hour.

CONCLUSION

AI and its generated inventions are the current obstacles faced by the world at large today. AI’s breakthroughs continue to modify industrial areas, and their protection under the patent umbrella is a current need. In the intervening connections between AI and patents, various enthralling questions arise: whether AI creations can secure patent protection, what will be the liability of AI if it infringes someone’s patent protection? The DABUS case emphasizes this question in which courts scuffle with AI-generated inventions. In this case, the U.S. court denies giving patent protection to AI as an inventor of two devices. Demystifying India’s perspective on AI patents needs a thorough understanding of its present patent laws, the challenges associated with AI creations, and the underway attempt to link policy with innovation. The patent laws of India still do not cover major patent problems. Therefore, first, we need to address the aforementioned problem and then AI-generated inventions.  AI’s capabilities enhancing rapidly and the best approach might be a harmony of innovation and regulation should go together.

REFERENCES

[i] ‘A Split Develops: Can Artificial Intelligence Invent Stuff?’(HAUG Partners, 30 November, 2021) <https://haugpartners.com/article/a-split-develops-can-artificial-intelligence-invent-stuff/> accessed 09 August, 2023

[ii] John McCarthy, ‘What is Artificial Intelligence?’ (Stanford University, 12 November 2007) < https://www-formal.stanford.edu/jmc/whatisai.pdf >accessed 09 August 2023

[iii]‘Patents’(WIPO) <https://www.wipo.int/patents/en/#:~:text=A%20patent%20is%20an%20exclusive,public%20in%20a%20patent%20application > accessed 09 August, 2023

[iv] The Patents Act 1970

[v] The Patents Act 1970, s 2(1)(j)

[vi] The Patents Act 1970, s 2(1)(i)

[vii] The Patents Act 1970, s 2(1)(ja)

[viii] The Patents Act 1970, s 2(1)(s)

[ix] Guidelines for Examinations of Computer Related Inventions(CRIs), 2017

[x] The Patents Act 1970, s 3(k)

[xi] Ibid. n(11)

[xii] The Patents Act 1970, s 2

[xiii] The Patents Act 1970, s 6

[xiv] V.B. Mohammed v Alfred Schafraneck and Ors. (1960) AIR KANT 173

[xv] National Institute of Virology v Vandana S Bhide, Pre-grant Opposition before the Controller of Patents in the matter of Patent Application 581 /BOM/ 1999  

[xvi] Ministry of Commerce and Industry, ‘National Intellectual Rights Property’ (MCI Policy, 2017)