Can Patent Law keep up? | Hudson McKenzie

Can Patent Law keep up?

Legal experts warn that Patent Law is likely to fall behind the advancement of Artificial Intelligence (AI) in times to come.

Patent Law is the branch of Intellectual Property Law that handles new inventions, in which when a patent is granted, this allows the inventory to have ‘exclusive right’ to sell their invention for twenty years.

At the World Economic Forum in 2018, a White Paper entitled Artificial Intelligence Collides with Patent Law’  stated that given the foreseeable advances of technology on a global scale, several legal sectors are likely to become impacted, specifically Patent law.

For instance, the White Paper outlines the following four main Patent law issues that are going to be impacted by AI in times to come:

  1. The Patent subject-matter eligibility of AI technologies
  2. The Patentability and inventorship of AI-generated inventions
  3. The Liability for patent infringement by AI
  4. AI’s role in the definition of “a person of ordinary skill in the art” in the nonobviousness standard.

Therefore, Patent Law is likely to become severely ‘outdated’ as the development of AI threatens to disturb the inherent legal structures within Patent Law itself. This is predominately because AI wasn’t considered in the creation of Patent Law, particularly within the United States.

Furthermore, a lot of AI is now being created by machines, in relation to issue number one outlined in the White Paper, which means that AI will be the subject-matter of most of the patents upon inventions within algorithm-based machine learning and so forth. Thus does this imply that AI will naturally become a legal entity with Patent Rights?

As an exception, the United Kingdom, Ireland, India, Hong Kong and New Zealand all have Patent Laws in place in which allows for the author of the program invented to be recognised, specifically as a human. For example, the programmer who is a human that generated the eventual invention of the machine.

At present, statistics show that China is in the lead when it comes to adapting Patent Law to ongoing AI developments, as they have allowed for the publishing of AI, ‘Deep Learning’ and Machine Learning Patents. However, the rest of world looks on as AI continues to develop without the acknowledgment of Patent Law for it.

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