Artificial Intelligence cannot be an inventor in Indian Patent Law

Artificial intelligence (“AI”) has advanced to the point that it can now generate unique and distinctive inventions during modern Industrial Revolution 4.0. The next issue is whether or not these AI innovations are patentable within the existing Patents Act.

DISTINCTION OF A PATENT OWNER AND INVENTOR

The inventor and owner of the claimed patent might be two distinct people or companies. The entity who submits a request to patent any invention is referred to as the “applicant“. If the application is approved, the “applicant” becomes the patent “holder“. The patent holder will be awarded monopolistic rights over that invention, which may be defended against anybody violating the patent.

The inventor can decide to be the patent’s claimant, but he or she can alternatively assign the rights to another business. Employees who invent within their employment typically transfer their rights to their respective organisations.

The present debate is about the inventorship status for AI-generated inventions according to the patent law; the agreement is that the applicant/owner of the patent must be a human entity. There are several reasons for this, including unambiguous language in patent regulations requiring a human claimant and the lack of genuine competence by an AI to apply for and retain a patent on its own. From the other side, it’s less clear whether or not the inventor has to be a person. In the Thaler case, this is a topic of controversy.

WHAT EXACTLY IS ARTIFICIAL INTELLIGENCE?

There is no commonly agreed definition of AI, and this article does not delve into the intricate details that underpin AI. To summarise, an AI is a machine that learns from input and data to build thinking, pattern recognition, and output capabilities without any need for human interaction. As a consequence, an AI is simply a learning system. It differs from a software programme whose output is determined by a set of predetermined algorithms. The inference is that an AI can develop an output on its own, without the necessity of human input.

THE STATUS IN DIFFERENT COUNTRIES 

The ability of artificial intelligence to claim and possess intellectual property rights in its work or innovation varies by country. Here’s what happens in a few nations:

●     India: The person for the time being placed on the register as the grantee or owner of the patent,” says Section 2(p). This does not specify who an innovator is, just like its Australian equivalent. S.2(q) defines “persons” including the government; nevertheless, it does neither exclude the inclusion of another entity and when read in conjunction with section 3B of Form 1 of the Act, which does not specify what sorts of entities fall under its definition, it may aid in scope extension. As per Section 6(1)(b), a “person who is the assignee of the person claiming to be the genuine and authentic inventor with regard to the right to make such an application“. It highlights the role of an inventor, and because AI does not fall within the definition of “person” under many statutes, such as section 2(31) of the Income Tax Act of 1956, it cannot delegate an application to another person. Furthermore, S.28(1)(a) specifies that “if the Controller is convinced that the person in respect of or by whom the request or claim is made is the inventor of an invention in respect of which application for a patent has been filed, or of a major portion of that discovery; the patent application is a direct outcome of someone being the inventor.” A person’s status as an inventor has no influence on his or her patent rights. However, because of the previous conclusion and the limited description of “person,” this will be deemed worthless; the possibility of AI being the inventor in India is small but not non-existent.

 ●     Nigeria: Every legal individual (both natural as well as artificially, even as the Copyright Act clearly covers corporations) has the liberty to patent the discovery or work, not an organisation without legal identity, such as artificial intelligence. AI technology cannot claim or enjoy intellectual property rights on computer-generated innovations or works due to the use of the term “person” in many laws.

●     United States (USA): An inventor in the United States is a “person” or, in the case of a combined discovery, those “people” who created or found the subject matter of the discovery jointly. A Federal Court ruled in the case of the University of Utah v. Max-Planck-Gesellschaft Zur Forderung der Wissenschaften that either enterprises or sovereigns cannot be designated as inventors. The word ‘individual’ is used in American patent law, which supports the idea that an “inventor” has to be a real human. In Stephen Thaler v. Iancu, et al., a United States Eastern District of Virginia court ruled that DABUS and any AI technology could not be cited as an inventor on a patent application since the term “individual” in the US Patents Act refers to a living person. According to Plaintiff, allowing patents for artificial intelligence discoveries will result in additional breakthroughs and assist promote the development of artificial intelligence.

●     United Kingdom (UK): Before a patent application could be issued, the UK Patent Act mandates that the inventor has to be an actual and a legal person. According to the Act, the inventor must be a “person” to be an original inventor. In Stephen Thaler v. Comptroller General of Patents, Trade Marks, and Designs, the UK Appellate Court reaffirmed the stance. Dr Thaler submitted two patent claims in this case, both of which were dismissed since the inventor must be human. In the United Kingdom, copyright on computer-generated works is held in the person who made all required strategies for such work’s creation. For example, section 178 of the UK copyright legislation and the Irish Copyright and Related Rights Act define a computer-generated work created by the machine when the inventor is not a human. The clauses of these Acts imply that work could be made without the intervention of humans.

●     Australia: In Telstra Corporation LTD v. Phone Directories Co Pty LTD, the Federal Court of Australia ruled that identifying an actual inventor remains essential for authentic fictional literature. Furthermore, on the 30th of July, 2021, the Australian High Court ruled that in Stephen Thaler v. Commissioner of Patents, artificial intelligence could be recognised as an inventor for the objectives of section 15(1)(a) of the Australian Patents Act, 1990, as well as section 3.2C(2(aa) of the Patents Regulation, 1991. The Court determined that the term “inventor” is an operative term, meaning thus an operator could be an in, individual or mechanism that innovates. “We are both created and created, why can not our creations create?” says Justice Beach. So, according to Dr Stephen Thaler’s patent filing, DABUS or other artificial intelligence, even if not an actual person, could be classified as an inventor in Australia. This decision has subsequently been challenged to the Full Court, although it will only apply to patents filed in Australia by AI technology.

 ●     South Africa: In South Africa, there is no explicit definition of the term “inventor” in the Patent legislation. “Any inventor or any other person obtaining from him the right to apply, or both the inventor and all other people as those for patent entitled to apply within South Africa,” are qualified to proceed for applying for a patent. According to the Patent Regulation, the patent application must also be filed using Form P1 and “when the applicant has obtained a right to claim from the inventor,” according to the Patent Regulation. On the 17th of July 2019, Stephen Thaler filed a patent application in South Africa, claiming DABUS as an inventor. The IP Commission of South Africa has approved the world’s first patent on a machine invention’s creation in July 2021. South Africa’s judgement has received some criticism, but it is widely seen as a positive step to resolve glitches in IP law, particularly jeopardising machine discoveries.

Conclusion: Artificial intelligence’s development has disproved the long-held belief that humans are the only source of creativity and invention. Artificial intelligence is causing massive changes worldwide, and it is receiving widespread adoption at a rapid pace. The emergence of artificial intelligence, from its opposite side, has left the globe on tenterhooks about the protection afforded to computer-generated works under various intellectual property rules. This is owing to the fact that, in the past, computer systems were merely tools for doing activities; now, such tasks can be completed remotely by such technologies. Humans simply can not keep covering up the gaps; the world’s legacy is digital, and artificial intelligence is the game-changer; as a result, existing rules must be reexamined to match the current reality. Because artificial intelligence is gaining popularity in the contemporary world today, such a persona that such machines do not seem to be actual individuals could no more be maintained. The watershed moments in Australia and South Africa may serve as a thorough impetus for incorporating artificial intelligence rights in intellectual property legislation on a national and worldwide level. The problem of rights and responsibilities attributed to artificial intelligence on works and inventions must also be resolved and spelled out clearly.

Disclaimer: The present article intends to provide general guidance on the subject, and you can also consult us in your specific case.

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    Khadeeja Zaidi is an undergraduate student studying B.A.LL.B (Hons) from the Faculty of Law, Aligarh Muslim University, Aligarh. Khadeeja aspires to be an expert in Cyber Law, Intellectual Property Rights and Technology Law. Along with her academics, Khadeeja is fond of writing blogs, posts, and articles highlighting contemporary issues revolving around Cyber Space and Intellectual Property Law.