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Patents: Can Inventions by AI be Patented?

By Dick Weisinger

Can patents be issued for technology or algorithms derived by artificial intelligence? That’s a problem that lawyers and researchers are now grappling with.

Law firm Baker McKenzie predicts that “patentability of AI-created inventions, liability for infringement by AI, and patent subject-matter eligibility of AI technologies are the top three areas of patent law that will be disrupted by AI.”

Kay Firth-Butterfield, Head of AI and ML at the World Economic Forum Center, said that “we are about to witness a collision between artificial intelligence and various aspects of patent law. This technology is going to change the game for many sectors, and will impact numerous regulations and legal fields.”

Currently patents are awarded to individuals. “AI can write books and take pictures, but if you don’t have a traditional author, you cannot get copyright protection in the US. A patent office might say, ‘If you don’t have someone who traditionally meets human-inventorship criteria, there is nothing you can get a patent on.’ In which case, if AI is going to be how we’re inventing things in the future, the whole intellectual property system will fail to work,” said University of Surrey law professor Ryan Abbott.

AI patentability is under review in both the US and UK. The US patent office recently posted questions for public review and comment. The US Patent and Trademark Office said that “going forward, the USPTO would like to engage with the innovation community and experts in AI to determine whether further guidance is needed to promote the predictability and reliability of patenting such inventions and to ensure that appropriate patent protection incentives are in place to encourage further innovation in and around this critical area.”

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