A patent gives you the exclusive commercial rights to your invention. This allows you to build a business or sell products without worrying that your idea will be stolen. But who owns the rights when artificial intelligence (technology that does an activity requiring ‘intelligence’) is the inventor.
Last year, a group sold an AI-produced artwork in New York for over $400,000. There was controversy about who created the code behind the AI, with an artist claiming the group modified their source code and used it to make the artwork. Would the source code author have been able to patent the AI and have exclusive commercial rights to its creations?
Is AI Patentable?
For either the user who generates the invention or the source code’s author to gain exclusive rights, the AI or it’s product must be patentable. In 2012, the Federal Court upheld the view that ‘source code’ wasn’t an ‘original work’ and couldn’t be copyrighted. While patents are different from copyrighted works – they protect how the program makes the computer work – computers aren’t generally seen as creators of original work or inventions. The WIPO, for example, defines IP as ‘the creations of the mind’.
The Patent Process
The two main patent types are standard and innovation patents; the latter setting a lower threshold for registration. Despite its lower duration of protection (eight years compared to the standard patent’s twenty years), innovation patents are often desirable for creators of AI because patents are difficult to achieve. For example, a 2015 case concerned an invention that automatically determined whether a person was competent or qualified to enrol in a specific training course based on relevant standards. The Federal Court said that it wasn’t a ‘new class of claim’ and so wasn’t patentable.
A patentable invention under the Patent Act 1990 must be:
- a specific ‘manner of manufacture’;
- novel and inventive or innovative (depending on the sought patent) compared to the ‘prior art base’; and
- useful.
The main problem facing AI patents is the ‘manner of manufacture’. The AI needs to be an ‘artificially created state of affairs of economic significance’ as long as granting the application wouldn’t cause a potentially negative effect. But as long as you show ‘some ingenuity’ in how the computer works, AI is patentable. A patent lawyer can advise you on this.
Exclusive Rights
While there is uncertainty in whether a patent for AI will succeed, if it did then the source code author would likely have exclusive commercial rights to it. As the earlier 2012 copyright case showed, a Court may not consider an AI-created work original. Thus, the patent owner would have the best case for, at the very least, royalties for any works made by their invention.
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