Can artificial intelligence be an inventor?

Can artificial intelligence be an inventor?

Artificial intelligence technology has been on the agenda lately due to its extraordinary rapid development. Although the subject of artificial intelligence is mostly featured in the press with ChatGPT, we see the effect of artificial intelligence in different areas every day. With the impact of this development, new questions come to the fore. One of the questions is, if artificial intelligence, which is used in many areas from graphic design to creating source code, makes an invention, who owns the rights to this invention?

The word patent means “to be open” in the context of the word origin. If we examine the root of the word; In the past, the privilege document, which was given by the monarch to people who had high positions and had some privileges, bearing his seal and in the form of a roll, was called “Latters Patent” (Open Letter). Today, a patent is a right arising from a document granted to prevent unauthorized use of industrially applicable inventions. In order for a realized invention to be patented, the invention must produce a solution to a specific problem. According to the Industrial Property Law No. 6769, in order to be granted a patent for an invention, it must meet the conditions of innovation, inventive step and industrial applicability. Patent protection is used in many fields, from biotechnology to drugs and even some computer programs (provided that they have a technical aspect and allow changes in the physical field).

Who can have a patent?

Intellectual products, by their nature, can be produced and developed by real people. In other words, the inventor must always be a human being, and the person who develops the intellectual product becomes the owner of the product he has developed. The patent right obtained for the product developed by the inventor can be owned by more than one person, that is, it can be the subject of shared ownership or the patent right can be transferred to legal entities. Although these alternatives are valid in terms of turnover, the essence of the work has to be a person who realizes the invention. At least that’s how it was until now…

Artificial intelligence describes Stephen Thaler as “an American inventor, scientist, and entrepreneur.” There is an artificial intelligence called DABUS (Device for the Autonomous Bootstrapping of Unified Sentience) that Thaler revealed. DABUS is one of the successful examples of artificial intelligence that can even perform studies that reduce the potential need for biopsy for prostate cancer. As a result of his work, DABUS has invented a food container with a fractal surface and an illuminated emergency warning system. Thaler wanted to get a patent for the inventions of DABUS, but he showed DABUS as the patent holder, that is, the inventor. For this reason, patent applications from every country he applied for were rejected. The rationale was the same and clear in every country: The inventor can only be human. Thaler says in an interview that he has a father-son relationship with DABUS. This is exactly why Thaler fought a legal battle to obtain a patent for DABUS in different countries.

To summarize Thaler’s application results; Thaler’s request, which applied to the US patent office on behalf of DABUS in 2020, was rejected by the office. This refusal was subsequently upheld by the Federal Court. The reason was cited as the fact that patent legislation in the country clearly stipulated that patent holders could only be humans. In Australia, the local court was the first to make the decision that artificial intelligence could be an inventor, but on appeal, the case was reviewed by the Federal Court and the decision was overturned. The Australian Federal Court also emphasized that the patent right belongs only to humans, and that DABUS cannot transfer this right even if it can obtain a patent on inventions. The same results were obtained in the European Patent Office (EPO), South Africa and the United Kingdom.

It is obvious that in the future, artificial intelligence will produce intellectual property products just like DABUS. Policy makers need to clarify some issues regarding this phenomenon, which has started to emerge in the period we live in and which we will encounter more in the future. If we list them in general terms;

  • Who can be considered an inventor when inventions are made using artificial intelligence?
  • Who will have the patent right?
  • The owner of the machine on which the artificial intelligence works, the copyright owner of the source code, the developer of the software, the person who entered the data into the artificial intelligence, and many more, which of these people will have obtained the patent right?
  • How will the patent right of inventions using artificial intelligence be transferred and what will be the responsibilities and rights of artificial intelligence during the transfer?
  • Since the patent right is absolute, what will be the right and legal status of artificial intelligence while the invention is allowed to be used?
  • What kind of legal approach will be in question if the product that has been invented before is developed using the same artificial intelligence or if another invention is created by adding the innovation step?

In addition to these questions, as can be seen from the case studies mentioned above, courts cannot apply laws written for humans to artificial intelligence. For the reasons listed, it has become essential for policy makers to conduct codification studies on generative artificial intelligence and its use, and to write new rules.

In summary; Today, while the contribution of artificial intelligence to the production speed and creativity increases, the legal status of the inventions becomes more complicated. While making new inventions with artificial intelligence, since the patent right is unique to humans, inventions are patented on behalf of humans, but this situation is changing. The solution to this changing situation concerns policy makers, not the courts, which are responsible for enforcing the law, and policy makers need to be quicker on legal regulations. It would not be wrong to say that if the regulations on this issue are slow, a legal chaos will occur within the scope of intellectual and industrial rights.

Hunting. Burak Mercan

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