This Article is written by Qamrush Zehra, A first year BALLB student at Symbiosis Law School, Hyderabad
INTRODUCTION
Artificial intelligence (AI) may be a fascinating term and one that's difficult to understand. It's almost as old as computing itself, and it had been one among the founding fathers of computing, Allen Turing, who in 1950 offered probably the primary AI test.[1]. While the legal focus expands from ethical and constitutional inquiries to product liability, it does also attract attention with reference to property law and particularly copyright and patents. the most goal of this chapter is to demystify the topic of AI by providing an insight into the present most generally used AI technologies. The second goal is to require a better check out two core patentability requirements, novelty and inventive step, to ascertain how the utilization of AI within the development of products and processes which will be protected by patents.[2] Influences the appliance of novelty and inventive step. Finally, it's the goal of this chapter to use the disruptive nature that AI may wear jurisprudence to shift the main target of the discussion back to the fundamentals of jurisprudence. It's my belief that the developments, that we will currently observe, should be seen as a chance to question and to rethink a number of the beliefs that we've cultivated over decades with reference to patents. AI seems to be a really colourful term. Everyone talks about it but hardly anyone seems to know the technology behind the term; a minimum of outside the AI-IT-World. Furthermore, there are many aspects like deep learning, machine learning or neural networks that are closely linked to the technology incorporated in AI but also terms such robotics, image or speech recognition and large data, which will or might not be specific use cases for AI. Also, many terms utilized in the discourse and lots of buzzwords seem to make even more expectations, fears, and half-truths. Therefore, it's important to interrupt down what AI actually is and—maybe more important—what it's not or a minimum of where its current limitations lie.
PATENTS
This chapter, therefore, follows a really straightforward structure. It takes a glance at the technology behind the term “AI,” (section 2) and it presents three use cases to demonstrate how AI is influencing jurisprudence already now—and not in 10 or 20 years (section 3). This chapter sheds some light on not only the capabilities but also the restrictions of AI to supply a solid understanding of the technology for the aim of application of jurisprudence. The chapter then outlines the wants for novelty and inventive step under the Patent Convention (EPC) and US jurisprudence. It also applies the law to the utilization cases (section 4). Finally, this chapter broadens the image and shows how a number of the problems mentioned by the utilization of AI within the innovative process may provide us with the chance to rethink a number of the rationales of jurisprudence (section 5).
In order to specialise in the aforementioned points, this chapter has got to omit other important issues surrounding AI. Therefore, it doesn't address the question in what ways AI intrinsically could also be protected by jurisprudence. I even have addressed this subject elsewhere.[3] It does also not address the question whether or not the AI intrinsically may become an inventor within the sense of jurisprudence or whether this is able to be desirable. supported the present case law, it presumes that it can't be an inventor. Finally, this chapter also doesn't analyze the complex questions of transparency and disclosure which will substantially influence the jurisprudence applicable to AI.[4]
CONCLUSIONS AND CONSIDERATIONS
AI is certainly a game-changer in many aspects of our lives and with reference to business models and therefore the general economy. However, it's important to assess its impact not only on industry and humanity during a realistic way but also on jurisprudence. Currently, no AI system is in a position to acknowledge the necessity for a replacement invention by itself and it doesn't initiate the inventive process by itself. Additionally, even the alimentation of essential information, representations, and procedures rest on individuals, and in maximum cases not only one human but then whole sides of specialists from numerous fields of knowledge. So, AI is way from becoming an inventor itself. Furthermore, the AI can only access information that's available in electronic form and currently there doesn't seem to be an AI with the potential of truly researching all electronically available information to be used in an invention. However, AI systems keep evolving and their availability and use are getting more widespread. this might actually influence the wants for patentability, namely novelty and most significantly inventive step, within the years to return. It's going to also mean that the bar for patentability will rise. this is often simply a fact or a minimum of an opportunity. It doesn't tell us whether this is often good or bad for innovation and competition intrinsically. Politicians, patent practitioners, and patent offices may even see an increase within the bar for patentability and therefore the resulting reduction of application and granted patents as negative for innovation. But such a conclusion is way from the reality. We'd like to recollect that patents intrinsically don't provide incentives for innovation intrinsically. It's competition and therefore the pressure to survive within the market that drive innovation. Patents are granted because we all know that in some cases the trouble put into an innovation might not be sufficiently compensated within the market if limitation follows too easy and too fast after the initial innovation. This free riding can then end in a discount of incentives to innovate and patents just restore those incentives.
But if the supply and therefore the use of AI should make the method of innovation easier, faster, and cheaper, the prices for innovation drop and therefore the requirement for monopoly prizes supported patents to recoup the prices of innovation are reduced also. this might mean that in some areas of technology the necessity for patents as incentives for innovation will vanish. this might also mean that other reasons for the legal system, like the supply of latest knowledge through the patent register or the likelihood to trade intangible goods will become more important. In any case, the increase of AI provides us with the chance to rethink not only the applicability of a number of the patentability requirements intrinsically but also the functioning and set-up of the general legal system. In light of the very fact that patents as drivers or impediments of innovation have now been discussed for a few decades, this might be something to be welcomed and to not be feared. After all, technological changes very often have influenced the law and sharpened the attitude on how it should be shaped to profit social.
[1] Allen M Turing, Computing Machinery and Intelligence (1950) 49 Mind 433-460. [2] Colin R Davis, An Evolutionary Step in Intellectual Property Rights—Artificial Intelligence and Intellectual Property (2011) 27 Computer Law and Security Review 601-619; Ben Hattenbach & Joshua Glucoft, Patents in an Era of Infinite Monkeys and Artificial Intelligence (2015) 19 Stan. Tech. L. Rev. 32-51, 32; Annemarie Bridy, Coding Creativity: Copyright and the Artificially Intelligent Author (2012) 5 Stan. Tech. L. Rev.; Iain M Cockburn, The Impact of Artificial Intelligence on Innovation; Jenna Burrell, How the Machine “Thinks”: Understanding Opacity in Machine Learning Algorithms (2016) Big Data & Society 1-12; Brian Higgins, The Role of Explainable Artificial Intelligence in Patent Law (2019) 31 Intellectual Property & Technology Law Journal 3-8; Tanuja Garde. [3] Peter R. Slowinski, Rethinking Software Protection in: Jyh-An Lee, Kung-Chung Liu & Reto M Hilty (eds.), Artificial Intelligence & Intellectual Property, Oxford, Oxford University Press, 341-364 (2021) [4] For this, see Chapter 11 by Alfred Früh in this publication
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