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INTERNATIONAL BUSINESS MACHINES CORPORATION

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Artificial Intelligence And Intellectual Property Rights

11/24/2021 | 05:11am EST

Artificial Intelligence (AI)means enabling machines and computers to imitate the learning, perception, decision-making, and problem-solving capabilities of a human being(IBM, 2020). The examples of the AI application areas are natural language processing (NLP), speech recognition, image recognition, real-time recommendation, healthcare, finance, education, and autopilot technologies.

AI technologies are expected to be used in the discoveries of new drugs and a huge amount of investment is required to be successful in these efforts. Chematica in South Korea and ElemNet in the US are examples of the AI systems that are used for the discovery of new medicines (Mikulak-Klucznik et al., 2020).

The term "Machina sapiens"is used by futurologists to define the birth of a novel species, which will have thinking capacity(Marconi, 2020). AI facilitates the creation of new inventions by performing different functions including finding patterns, sorting data, and making predictions (Walch, 2020).

IP regimes have been under the influence of emerging trends in the innovation ecosystem such as technological diffusion, decentralization of knowledge, increased innovation costs, and shorter innovation cycles (Gassmann et al., 2021). AI technologies have raised existential questions regarding the fundamental tenets of the patent system including ownership, inventorship, and infringement. The increasing autonomous nature of the AI technologies and emergence of possible products, which are solely manufactured by the AI systems, has raised the question about the suitability of these systems for inventorship in the current IP regime, which relies on the "human inventor" to incentivize people for innovation.

The term "AI-generated" refers to the products that are generated by AI without any human intervention(Bosher, 2020). In today's technology, AI systems have not the capability to produce a piece of art or goods in a completely autonomous way. However, rapid technological developments in this field force the IP policymakers to introduce ideal regulations that enable the protection of IP rights without creating any side-effect such as a decline in the enthusiasm for new inventions.

The main purpose of the current patent system is to grant exclusive rights to natural persons for their inventions. Because these rights are believed to be beneficial to encourage people and entities to make investments to contribute to their societies. Another goal of the patent system is to record the specific details of the inventions for inspiring future generations to develop this knowledge-based heritage.

TheRembrandt project, in which AI technology was used to produce a painting based on the data acquired from the previous paintings of Rembrandt, clearly demonstrates the blurriness between technology and art (Baraniuk, 2016).

In the context of AI, the crucial question is that who should be the inventor in the patent application for AI-generated products? According to a school of thought, AI-generated products should fall within the category of public domain. The main problem with this approach is that lack of incentives would harm the motivation of the people to invest in the development of new inventions (Gürkaynak et al., 2017). In this regard, granting the patent rights for the AI-generated products to the creator of AI systems are believed to be crucial in the entrepreneurial ecosystem. A similar approach is also adopted in the Taiwan legal system. Article 798 of the Taiwan Civil Code states that "Fruits that fall naturally on an adjacent land are deemed to belong to the owner of such land, except if it is a land for public use".

On the other hand, the shortfall of vesting IP rights to the AI systems is related to the licensing and transferring of these rights to the other actors. Because the AI systems do not have capability to give decisions about these issues. Current legal systems do not recognize a non-human actor as a candidate for inventorship. In addition to that, although the number of AI-generated products has increased in recent years, it is evident that such products cannot come to exist without massive human endeavors in the creation of AI algorithms.

In the Dabus case in the UK, Stephen Thaler alleged that the AI system should have been added as a sole name in the patent application of a neural flame and fractal container. Courts in the US, UK, and EU refused his claim on the ground that Dabus is not a natural person and demonstrated that judicial systems are not ready to embrace the idea of granting IP rights to the AI systems(Megget, 2021). Thaler also applied to EPO to register the new inventions on the name of the AI-based machine DABUS (EP 18 275 163 (for a foodcontainer), and EP 18 275 174 (for methods and devices for attracting enhanced attention)). As considered himself as the employee of DABUS, He stated that "DABUS could identify the novelty of its own idea[s] before a natural person did" (Olivi and Spadavecchia, 2020). The EPO also rejected the application of Thaler based on Article 81 of the European Patent Convention (Sandys, 2020).

Apart from the inventorship dispute, there is another dispute about the liabilities in the IP infringement conducted by the AI systems. Lack of the mens rea element on the side of the inventor of the AI systems in those infringements will complicate the criminal proceedings(Bharucha&Partners, 2021).

Both legal experts and policymakers in Turkey closely follow the AI-related IP debates in the world. Turkish Patent Office sees AI technology as an industrial revolution known as Industry 4.0 due to the sharp increase in the number of AI patent applications.

Habip Asan, the head of the Turkish Patent Office, stated that "there is a 56-percent rise in the applications about the artificial intelligence and Industry 4.0 in the recent three years to European Patent Office" (Türk_Patent, 2018). Furthermore, Istanbul, Ankara, and Izmir Bars prepared a detailed report about the implications of AI on the Turkish patent regime and criminal law(KIZRAK et al., 2019). It should be noted that there has not been yet a consensus about the new IP regulations regarding the AI systems in Turkey.

In conclusion, it seems that the inventorship dispute regarding AI-generated products will remain in flux for the foreseeable future. For now, each AI-related IP dispute will be investigated based on the unique material facts of them. Different nations and international organizations including the UK, the US, EU, and WIPO are performing comprehensive studies to find optimum solutions for the IP disputes related to the AI-systems and the pace of the development in AI technology will be decisive in the creation of new rules in this field.

References

BARANIUK, C. 2016. Computer paints 'new Rembrandt' after old works analysis [Online]. BBC. Available: Computer paints 'new Rembrandt' after old works analysis [Accessed 21.02.2021 2021].

BHARUCHA&PARTNERS. 2021. Copyright in works created by artificial intelligence: issues and Perspectives [Online]. Lexology. Available: https://www.lexology.com/library/detail.aspx?g=4513277a-6571-40f1-923d-c09ec5366fdd [Accessed 21.02.2021 2021].

BOSHER, H. 2020. WIPO Impact of Artificial Intelligence on IP Policy Response from. London: Brunel University London.

GASSMANN, O., BADER, M. A. & THOMPSON, M. J. 2021. Patent Management Protecting Intellectual Property and Innovation, Switzerland, Springer.

GÜRKAYNAK, G., YiLMAZ, I., DOYGUN, T. & INCE, E. 2017. Questions of Intellectual Property in the Artificial Intelligence Realm [Online]. Elig Law Firm. Available: https://www.gurkaynak.av.tr/docs/8b791-rlj-september-october-2017-.pdf [Accessed 20.02.2021 2021].

IBM. 2020. Artificial Intelligence (AI) [Online]. Available: https://www.ibm.com/cloud/learn/what-is-artificial-intelligence [Accessed 9.02.2021 2021].

KIZRAK, M. A., BULUZ, B., ÖZPARLAK, B. O., ÜNSAL, B., GÜRZUMAR, D. D., ATALAR, G. D., ERIS, M. H., KÖKSAL, M. A., ÖZDEMIR, N., BASÇAVUSOGLU, O., GÖKSOY, R., ARSLAN, S. & ÇETIN, S. 2019. Yapay Zeka Çaginda Hukuk.

MARCONI, F. 2020. Newsmakers: Artificial Intelligence and the Future of Journalism, New York, Colombia University Press.

MEGGET, K. 2021. Patent applications listing AI as an inventor run into legal problems [Online]. ChemistryWorld. Available: https://www.chemistryworld.com/news/patent-applications-listing-ai-as-an-inventor-run-into-legal-problems/4013138.article#/ [Accessed 21.02.2021 2021].

MIKULAK-KLUCZNIK, B., GOLEBIOWSKA, P., BAYLY, A. A., POPIK, O., KLUCZNIK, T., SZYMKUC, S., GAJEWSKA, E. P., DITTWALD, P., STASZEWSKA-KRAJEWSKA, O., BEKER, W., BADOWSKI, T., SCHEIDT, K. A., MOLGA, K., MLYNARSKI, J., MRKSICH, M. & GRZYBOWSKI, B. A. 2020. Computational planning of the synthesis of complex natural products. Nature, 588.

OLIVI, G. & SPADAVECCHIA, S. 2020. The DABUS case: two patent applications designating an AI-based machine as the inventor refused by the EPO [Online]. Dentons. Available: https://www.dentons.com/en/insights/articles/2020/march/27/the-dabus-case [Accessed 21.02.2021 2021].

SANDYS, A. 2020. UK High Court rejects idea of invention by AI system Dabus [Online]. Available: https://www.juve-patent.com/news-and-stories/cases/uk-high-court-rejects-idea-of-invention-by-ai-system-dabus/#:~:text=The%20UK%20High%20Court%20has,a%20decision%20by%20the%20UKIPO. [Accessed 21.02.2021 2021].

TÜRK_PATENT. 2018. AI, Industry 4.0 Patent Applications On Rise [Online]. Turk Patent. Available: https://www.turkpatent.gov.tr/TURKPATENT/allNews/newsDetail?newsId=947 [Accessed 21.02.2021 2021].

WALCH, K. 2020. How AI Is Finding Patterns And Anomalies In Your Data [Online]. Forbes. Available: https://www.forbes.com/sites/cognitiveworld/2020/05/10/finding-patterns-and-anomalies-in-your-data/?sh=fb00bc5158e1 [Accessed 21.02.2021 2021].

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

Mr Faruk Yamankaradeniz
Destek Patent
Maslak Mah. Büyükdere Cad. No: 243
Kat: 13 Spine Tower Sariyer
Istanbul
TURKEY
Tel: 312295 6413
Fax: 212346 02 64
E-mail: simay.akbas@destekpatent.com.tr
URL: www.destekpatent.com.tr

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