Although the concept of artificial intelligence, or AI. Artificial Intelligence) or AI (an abbreviation derived from the Polish name Artificial Intelligence) has its beginning in the 60s of the twentieth century, and it is only in the second decade of the twenty-first century that it experiences its heyday.
The original concept of AI, according to the author of this term John McCarthy in 1955 [source: https://pl.wikipedia.org/wiki/Sztuczna_inteligencja#CITEREFBoden2020], was to mean the creation of a machine whose operation could imitate human intelligence.
Nowadays, AI is technologies using computer programs or neural networks based on fuzzy logic, expert systems, machine learning, advanced data analysis, speech or image and text recognition. One of the areas of AI is also artificial creativity. And against this background, many questions arise about patent protection for AI technology, which we will try to answer.
What are the main criteria for obtaining a patent for a technology that uses AI?
Patent protection is granted to technical solutions, i.e. those that have technical features or are of a technical nature.
Technical nature of the AI invention
The vast majority of patent office recognize that a solution is technical when it belongs to a given field of technology and has been described by technical means. However, the interpretation of what constitutes a technical solution may be different, depending on the assessment of the patent office in question.
For example, in Poland, the technical nature of a solution required an impact on matter, which is why inventions belonging to the computer-aided category were often refused patent protection by the Polish Patent Office (PPO), despite the fact that, for example, the European Patent Office (EPO) granted patents for such solutions. After the amendment to the Industrial Property Law (IPL) in 2019, the legislator removed from Article 33(3) of the IPL the requirement to affect the matter as a determinant of the technical nature of the solution and thus opened up the possibility of granting protection for inventions carried out with the use of a computer, i.e. those where at least one activity is performed by a computer program.
The 2019 amendment to the IPL also clarified the provision of Article 28(2), which clarifies that mathematical methods, principles and methods of conducting thought processes, computer programs or the presentation of information “as such” are not considered inventions. Thus, the possibility of obtaining protection for inventions using the above-mentioned issues was opened in Poland, harmonizing the practice with the EPO.
Can I patent a computer program?
In addition to its technical nature, an invention must also meet the criteria of novelty, inventive step and industrial applicability in order to be eligible for patent protection.
This means, for example, that a computer program (but not its source code) will be protected by computer protection for the way the program works, as long as it solves a given technical problem in a new and non-obvious way.
The scope of patent protection will then cover a computer program containing instructions which, after the computer executes the program, cause the computer to perform the steps of the method. On the other hand, the source code as such will be able to be protected as a work within the meaning of copyright law.
Can I patent how an algorithm or neural network works?
AI solutions based on algorithms or computational models as such are treated as abstract mathematical methods excluded from patent protection. On the other hand, if such a mathematical method is used to achieve a further technical effect, in other words, it produces a technical effect, for example, it processes data from physiological measurements, and the result of this action is the delivery of a medical diagnosis, or a neural network is used to classify X-rays in order to identify atypical tissue changes and initial diagnosis of cancer, then such applications may be patented, as long as they are also new and not obvious.
However, the algorithm itself or the neural network “as such” used to classify data, without indicating what they use, are not technical in nature, because they are treated and cannot be patented.
Who is entitled to the rights to an invention created by AI?
GenAI is a form of AI based on advanced machine learning techniques that has the ability to create completely new data. Therefore, it is not a machine that processes existing patterns and makes decisions according to a given pattern. Based on the data on which it is trained, the AI gene can learn on its own and create texts or images or compose music. Gen AI is also capable of developing innovative solutions. The development of AI, especially generative artificial intelligence, or GenAI, which can independently create text, images or solutions, has led to a situation where the question has arisen: can AI be a creator?
The creator is a man
According to the principle established in intellectual property law (e.g. Article 11(1) of the IPL), the right to obtain a patent for an invention is vested in the inventor. Pursuant to Article 8(1)(3) of the IPL, the author also has the right to be mentioned as the author in descriptions, registers and other documents and publications. In the light of copyright law, the creator is a person, so it seems that no one other than a human being can have the right to an invention.
This approach has been confirmed in the case law of the USPTO and American courts. In the high-profile and widely commented DABUS case3, in a decision of April 22, 2020, it was decided that inventiveness is related to human creative activity and AI cannot be an inventor.
Two inventions submitted by Dr. Stephen L Thaler pointed to “DABUS” (Device for the Autonomous Bootstrapping of Unified Sentience) as their creator. Thaler, as the author of the artificial intelligence system, claimed that both inventions were autonomously generated by the DABUS artificial intelligence, which is why DABUS was indicated as their creator.
South Africa breaks the rules
Inventions were filed in various jurisdictions. The only exception where patent protection has been granted for an invention created by an artificial intelligence system is South Africa. The local patent No. 2021/03242 was considered valid because the entry of DABUS as the inventor and Dr.Thaler as the applicant met the procedural prerequisites and, in the opinion of the local patent office CIPC, could not be challenged under national regulations.
Quo vadis AI?
However, the DABUS case has provoked the jurisprudence and decision-makers to consider whether the development of AI will not force changes in the law towards recognizing artificial intelligence as equal to human ingenuity. The directions of these changes are set by the institutions of global AI leaders, i.e. the US and China, focusing on the rights to GenAI products.
The U.S. Copyright Office has issued guidelines for registering works containing AI-generated material, indicating that creative human input is required. In their opinion, the prompt, i.e. the command given to GenAI, although affects the result of the “machine”, may determine that it is the prompter that has the right to this result. A completely different position was expressed by the Internet Court in Beijing, which found that the GenAI user is the owner of the copyright to the work – the image generated by AI – because it was he who edited the prompts and parameters so that the AI generated the image corresponding to the aesthetic choice and judgment of this user.
Such different approaches to AI-generated rights introduce legal uncertainty for global copyright acquisition of GenAI-generated “works”.
Therefore, it is worth consulting your doubts with the patent attorney of FGGH IP in order to properly secure your inventions developed with the use of artificial intelligence or to avoid legal risks related to the use of results generated by AI.
Iwona Płodzich – Hennig
