This article is authored by Ankit Verma and Shreyansh Gupta, affiliated to Law Centre 1, University of Delhi.
The US Patent Office recently ignited a global conversation by issuing guidance on artificial intelligence's (AI) role in patents. The USPTO's directions offer a crucial map for navigating these uncharted waters. This article delves into the jurisprudential aspects of AI patents in India, analysing the implications of this evolving landscape for Indian innovators and the future of AI-driven inventions[1].
Artificial intelligence (AI), refers to the development of computer systems capable of performing tasks that typically require human intelligence, such as speech recognition, decision-making, and problem-solving.
What's a Patent?
It provides inventors with exclusive rights to their inventions for a specified period. To file a patent application, individuals or entities must meet specific criteria set by each respective office.
In simple words, A patent is a legal property right granted by a government to an inventor or assignee, providing exclusive rights to exploit and profit from their invention for a defined period.
A Regulatory Background behind AI Patentability
United States of America
US-based patents are governed by the Patent Act (U.S. Code: Title 35), which established the statutory body i.e., the United States Patent and Trademark Office (the USPTO) which is subject to the policy direction of the Secretary of Commerce (the US Department of Commerce).
India
The Controller General of Patents, Designs, and Trade Marks (CGPDTM) generally known as the Indian Patent Office, is a preliminary agency under the Department for Promotion of Industry and Internal Trade (DPIIT) which administers the Indian law of Patents, Designs and Trade Marks under the “Patent act,1970” and compliance with international treaties like the Patent Cooperation Treaty (PCT) and Budapest treaty under Section 2(1) (aba), The Patents Act, 1970.
Impact of AI on Traditional Concepts of Inventorship
Traditionally, inventorship has been attributed to human intellect and creativity. And it includes the human ingenuity alone. However, with AI, lines blur as machines contribute significantly to the inventive process. AI Inventorship requires a nuanced approach that considers both the contributions of AI systems and human inventors, ultimately shaping the future of intellectual property law and innovation[2].
The Global Situation
Europe
The European Patent Office (EPO) has stated that an inventor must be a natural person. However, they have also recognized the necessity of AI implementation in future contexts.
China
The Chinese National Intellectual Property Administration (CNIPA) has clarified that Article 13 of the Rules for the Implementation of the Patent Law defines an "Inventor" or "creator." However, the Guidelines for Patent Examination further specify that the inventor must be an individual. Currently, a machine or device, including AI, cannot be recognized as an "inventor" in China.
UK
The UK Intellectual Property Office (UKIPO) has emphasized that the law requires an inventor to be a natural person. In terms of existing legal regulations in most countries or regions, the current internationally applicable standard is that an inventor must be a natural person.
South Africa
The South African Patent Office became the world's first IP office to grant a patent for an invention developed by the AI machine DABUS. However, it is pertinent to note that South African patent law does not define "inventor."[3].
Japan
The Japan Patent Office (JPO) has taken a relatively progressive stance regarding the recognition of AI as an inventor. The JPO considers that AI systems can be named as inventors to fulfil certain legal obligations, which may include:
Human Representatives
Human is required to submit the patent application, providing necessary information and representing the interest of the AI inventor throughout the whole process of application.
Ownership & Rights
Human representatives or AI must hold ownership rights to the invention and it is essential to clarify the ownership and rights associated with the invention in case of disputes arising.
Disclosure requirement
The human representative must disclose relevant information and the contribution of its AI in the invention and thus include AI algorithms, data sets, and other relevant technical information.
Ethical and legal considerations
The human representative must ensure applicable laws, regulations, and ethical guidelines governing AI technology and intellectual property rights.
International harmonization
JPO collaborates with different international organizations to promote harmonization and consistency in the invention and the invention must aligned with international standards.
Patent-worthy Industry Use Case of AI and India: A Perspective
Agriculture Sector
An important AI system such as landscape monitoring can have a big positive impact on the agriculture sector as a whole. Through the provision of comprehensive insights on the performance of specific fields and their future requirements, this AI technology helps farmers optimize crop yield, minimize waste, and improve sustainability.
The AI-powered landscape monitoring system created by Google's AnthroKrishi and Google Partner Innovation teams in India is one practical application of this technology. In order to establish a cohesive "landscape understanding," this system's use cases are satellite imagery and machine learning to pinpoint field boundaries, acreage, irrigation systems, and other crucial information for efficient farm management.
This AI system's technology is patent-worthy because of its creative use of AI to solve important agricultural problems. This technology enables farmers to make data-driven decisions, optimize resource use, and raise overall production by giving them exact information about their farms, crop varieties, water availability, and historical data.
The AI system is a useful tool for sustainable agricultural operations because of its capacity to provide customized insights at a fine level. When considering patentability under Indian law, factors such as novelty, inventive step, industrial applicability, and non-obviousness are crucial.
Evaluating Google's AnthroKrishi's AI-driven landscape monitoring system for patentability requires a thorough analysis of its technological innovations, algorithms, and methodologies.
Furthermore, the patent application must sufficiently disclose the inventive aspects and demonstrate how it addresses significant agricultural challenges in a manner not obvious to experts in the field.
Defence
Many AI inventions in the Indian Defence industry are eligible for patents because of their distinctive uses and their influence on national security. The creation of AI-based surveillance robots, such as the entirely 3D-printed, rail-mounted robot called Silent Sentry, which is intended to improve border security and surveillance capabilities, is one example of this breakthrough.
This robot provides the Indian military with real-time monitoring and situational awareness by using AI algorithms to navigate over metal rails put on fences and Automated Integrated Observation Systems (AIOS).
The integration of AI-powered surveillance technologies and the autonomous operation of the Silent Sentry within predetermined boundaries provide it a powerful instrument for augmenting the surveillance grid and deterrence capacities of the Indian armed forces.
The novel use case of AI in a defence setting, notably in the fields of surveillance and border protection, makes the Silent Sentry patent-worthy.
The robot is a ground-breaking technology that has the potential to greatly improve the Indian military's monitoring and response to threat capabilities due to its autonomous operation, AI-driven surveillance capabilities, and interaction with current systems.
Its patent-worthy nature is further supported by the possibility that other countries might duplicate or reverse engineer and utilize this technology, which might completely transform border security.
Overall, this application offers a strong potential for obtaining patent protection under Indian patent laws, given it meets the requirements such as novelty, inventive step, industrial applicability, non-obviousness, and sufficient disclosure.
A thorough examination of its technical aspects and contributions to defence and surveillance is essential to determine its eligibility for patentability accurately.
Sports Sector
Certain AI-based inventions in the sports industry have the potential to transform athletic performance analysis and improve sports training, making them patent-worthy.
The application of AI to predictive analysis and individualized training recommendations is one noteworthy AI innovation in the sports industry. In order to forecast player performance, injury risks, and even game outcomes, AI systems can analyse enormous datasets.
This allows them to provide coaches, teams, and players with important information. Based on player tiredness and in-game performance, these AI algorithms can suggest the best player rotations, providing a data-driven method for making decisions in sports.
The use case novelty of the recommendation algorithms, the techniques for integrating real-time game data, and the potential influence on enhancing player performance and team tactics make these AI breakthroughs patent-worthy.
Sports organizations can improve player development, optimize training programs, and obtain a competitive edge in the sports business by utilizing AI for predictive analysis and individualized training recommendations. These advancements enable sports organizations to optimize training programs, improve player development, and gain a competitive advantage because AI can offer customized insights and recommendations suited to certain players.
From a patent law perspective, the unique application of AI in sports analysis and training, along with its potential impact on athletic performance, supports their eligibility for patent protection.
Future Outlooks
The integration of Artificial Intelligence (AI) into the patent world[4] will be the transforming step towards the future of AI. The exponential rise of AI will lead to cognitive thinking in the AI-based system which subsequently makes the AI invent something that tackles the needs of future issues.
Collaboration platforms facilitate communication among different international organizations such as the Patent Office of Nations and WIPO. AI integration can revolutionise patent drafting, prosecution, and management, fostering innovation and economic growth.
Shortly, AI may design complex chemical structures for new drugs, optimize engineering designs, and even compose music or create art. Hence, due to this quality of AI invention granting the inventorship title may be justified.
Conclusion
According to the eminent jurist Salmond, “A person is any being whom the law regards as capable of rights and bound by legal duties”. AI doesn’t have the rights to stand upon and also lacks legal duties, on the other hand person is enriched with both rights and legal duties. According to the Indian Legal nexus Section 11 of Indian Penal Code, 1860[5] and Section 2(1)(s) of the Patents Act, 1970[6] explains the person. This is a non-exhaustive definition and, the word “includes” in the section also incorporates the original notion of the natural human being. The patent inventor must be a Natural Person. Still, so far there is no amendment has been instituted for the Person definition to incorporate the AI. Subsequently, if AI falls under the definition of the Person it can designated as a "Person interested"[7].
Whereas in the history of the “Republic of India,” the Constitution is made under the guiding light of foreign state’s Constitutions also. Recently, in 2016 inspiration for GST (Goods service tax) was taken from the Canadian Dual GST model, But France was the first country to implement the GST in 1954. Similarly, we can also form structured guidelines for the inventorship title to AI. As, Article 51A(h) of The Constitution of India[8].
However, the emergence of AI introduces new capabilities and complexities which must be addressed by the legal framework. Policymakers and stakeholders scrutinize the incorporation and ensure a delicate balance between fostering creativity and safeguarding legal and ethical principles. So that we can unlock the full potential of AI-driven invention upholding the integrity of intellectual property rights.
For the time being AI is not considered as an “INVENTOR” as per Indian Law.
References
[1] https://www.indicpacific.com/post/uspto-inventorship-guidance-on-ai-patentability-for-indian-stakeholders
[5] Section11, IPC - The word “person” includes any Company or Association or body of persons, whether incorporated or not.
[6] Section 2(1)(s), The Patents Act, 1970 - "person" includes the Government;
[7] Section 2(1)(t) of The Patents Act 1970
[8] Article 51(A)(h) of the Constitution of India, 1949 imparts to develop scientific temper, humanism and the spirit of inquiry and reform.
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