“The best way to predict the future is to invent it” – Alan Kay
Introduction
To get a patent over an invention, an inventor must apply for the patent as per the jurisdictional laws. In India, patents are governed by the Indian Patent Act, 1970 (hereinafter referred to as “Act”).
Generally, every invention has its roots in human ideology. However, if the inventor is a machine, an Artificial intelligence (AI), instead of a human, there are a wide range of questions that arise – Is it okay to give legal recognition to AI as an inventor? What is the legality of the AI as an inventor?
In this blog, let’s explore the legality of AI as an inventor.
“Inventor” as per Indian Patents Act, 1970
The term “inventor” is not explicitly defined under the Indian Patent Act of 1970. However, it can be understood by analyzing the following different provisions of the Act:
Section 2(1)(j) of the Act
An “invention” is something new that has been created, which can be either a product like a device or material or a process like a method or technique. For something to be considered an invention, it must meet three main aspects:
- Novelty: The invention must be new; it should not have been disclosed or known to the public before the date of filing the patent application. If the same idea or product already exists or has been used publicly, it cannot be considered novel and thus, cannot be patented.
- Inventive Step: It should involve some creativity or innovation that goes beyond what is already known and should not be obvious to a person skilled in the art.
- Industrial Application: It must be something that can be used or made in an industry.
An inventor would be someone who creates an invention according to the above requirements. In other words, an inventor cannot be someone who just discovers natural phenomena, rearranges existing things without innovation, or creates something that does not meet the criteria for an invention under Section 3 of the Indian Patents Act, 1970. Thus, as per the Indian Patents Act, the term “inventor” implicitly refers to a person who contributes original and creative effort resulting in a patentable invention under the Act.
Section 6 of the Act
Section 6 gives further clarity as to who could be the inventor. It contains provisions regarding who is entitled to apply for a patent under the Act. Section 6 explicitly mentions the term “person” for someone claiming to be the true and first inventor of the invention. Essentially, an inventor is a “person” who first comes up with a new and original idea, and this person has the right to apply for a patent. If this person assigns their rights to someone else, the assignee or legal representative can take over the application process.
Thus, it can be understood from Section 6 that the scope of the term “inventor” under this Act is explicitly confined to a person as only they can apply for a patent or transfer these rights to another.
Sections 2(1)(s) and 2(1)(y) of the Act
As per Section 2(1)(s) of the Act, “person” includes Governmental bodies too. On the other hand, Section 2(1)(y) of the Act discusses who cannot be the “true and first inventor”, such as importers, or those who merely communicate an invention from outside India. Accordingly, to be an “inventor”, a person must have actually created the invention themselves, not just brought it into India or learned about it from another country.
Interim Conclusion
From the above discussion, it is clear that though the term “inventor” is not explicitly defined under the Act, the inventor must be a “person”.
Guidance from the Courts
In 1958 (well before any discussion or even awareness of AI in India), in V.B. Mohammed Ibrahim v. Alfred Schafraneck and Ors, the Karnataka High Court defined an inventor as someone who has directly contributed to the creation of an invention through their own skill, ingenuity, and labour. The court highlighted that only those who worked on the invention with their own skills can be the inventors. The court also ruled that merely financing an invention cannot render the person to be an inventor. The Court specifically held that: “A firm cannot be said to have the capacity to invent. It cannot be called an inventor although there may be no objection to its being registered as a patentee either or assignment by a patentee or jointly with the true and first inventor. A corporation cannot be the sole applicant claiming to be the inventor.”
It can thus be inferred that AI, which operates based on algorithms and data fed by humans, on the other hand, lacks the human qualities of creativity and intention.
Insights from the Copyright Office
The Indian legal system has adopted a mixed approach when it comes to acknowledging the role of AI technology in the intellectual property regime. The Indian Patent Office does not allow AI systems to be recognized as inventors at present.
However, the Indian Copyright Office has set a precedent by granting the registration of an artwork called “Suryast” which is co-authored by human, Ankit Sahni, and the RAGHAV Artificial Intelligence Painting App. This decision is unique to India as for the first time, AI tool has been accepted as co-author of copyrighted work.
The two different approaches of patents and copyrights depict the flexibility of India in dealing with the changed perception of the role of AI in creativity and innovations. While patent laws are yet to be amended (or interpreted) to accommodate AI inventors, the copyright recognition demonstrates India’s willingness to explore new frontiers in AI-generated works.
AI as Inventor in Other Countries
USPTO and EPO have decided that AI, like the DABUS system, cannot be listed as an inventor.
United Kingdom, the European Union, and New Zealand have affirmed that under the existing laws, only human beings can be named as inventors on patents. This is because the existing statutes and rules have been laid down on the assumption that inventors need to be people who can think creatively and have intentions. Having said that, jurisdictions like Australia and South Africa have recognized AI as an inventor.
General consensus amongst major jurisdictions is that AI cannot be considered an inventor under current laws because it does not have the status that the patent law requires for inventorship. Moreover, AI is not a legal entity like a person or a company, and it cannot hold rights or responsibilities. For someone to be recognised as an inventor under patent laws, they need to have legal standing, which AI does not possess. Inventors are usually people who come up with new ideas or processes through their own thinking and intention.
Conclusion
As we stand on the cusp of a new era in technological advancement, the question of whether AI can be recognized as an inventor under patent laws is both timely and critical. The current legal framework in India, like in many other jurisdictions, does not accommodate AI as an inventor, primarily because AI lacks the human qualities of creativity, intention, and legal standing that are traditionally associated with inventorship.
However, the landscape is rapidly evolving. The mixed approach seen in India—where AI has been acknowledged as a co-author in copyright law but not as an inventor in patent law—reflects the complexities and the need for a nuanced approach to AI’s role in innovation. As AI continues to advance, it may not be long before the legal system is challenged to rethink the traditional notions of inventorship.
The future of AI in intellectual property law is not a question of “if” but “when” and “how.” It is crucial for lawmakers, technologists, and society at large to engage in thoughtful discourse on this subject, ensuring that the legal framework evolves in tandem with technological progress.