|
|
|
| Theoretical Regression and System Exploration of Patent Protection for AI-generated Invention: DABUS as an Example |
| Ji Dongmei |
| (Law School, Capital University of Economics and Business, Beijing 100070, China) |
|
|
|
|
Abstract Nowadays, artificial intelligence (referred as ‘AI’ thereafter) technology is integrated into finance, science, education and other fields, changing the mode and process of innovation and creation. AI becomes increasingly independent in innovation. Various forms of intelligent products appear, such as the artificial intelligence equipment represented by DABUS can automatically generate invention. But these products cannot constitute intellectual property subjects under current law system, which triggers controversy within academic and practical fields.#br#As to the problems of AI and intellectual property law, lots of discussions focused on the protection of copyright or patent of AI-generated inventions, but practice cases are seldom seen in the present study. Hence, this paper focuses on the core issues in the DABUS case and the basic theory of patent law, re-explains the value goals of patent law and analyzes whether it is necessary to protect AI-generated inventions through the patent system. It aims to explore the feasibility and rationality of the system design by combining the existing rules of patent law from the perspective of subject matter, right contents and right restrictions.#br#Combined with DABUS technology system analysis, this paper illustrates the challenge that the patent law faces in AI era. Firstly, the identity of the "inventor" of artificial intelligence cannot fit into the traditional understanding of "inventor". In the traditional concept, "inventor" refers to a person who has made creative contributions to the substantive features of an invention-creation. The formal requirements in the process of patent application and authorization are obstacles to obtain patent protection for AI-generated inventions. The source of the patent applicant's rights constitutes another question. Commonly, it is the subject who actually completed the invention has the right to file a patent application and obtain authorization. In the DABUS case, the identities of the applicant and the inventor appear to be separated, and the applicant Stephen's ability to claim the right to the invention automatically generated by the DABUS intelligent machine has become another focal issue.#br#To respond to the problems above, it is necessary to return to the theoretical background of patent system. The objectives of patent law can be divided into three levels: direct goal, indirect goal and ultimate goal. Combined with the development of emerging technologies such as artificial intelligence, a new interpretation of the patent system should be made, with the focus on the needs of the era of social and economic development, and considering industrial policies, costs and benefits, etc.#br#As a basic theory tool, the labor value theory may expose its limitations when it is applied to current intellectual property. AI creation activities are separated from the traditional category of labour, and AI does not belong to the main category of laborers' human rights. In the era of artificial intelligence, the conception of invention in the patent law needs to be understood in a broader sense, both in the technical content and in the legal sense. When it comes to incentive theory, AI technology may get progress greatly if it is protected fully and timely. Some judicial precedents in China, in the face of the protection of AI-generated things, presents instrumentalism and consequentialism, and value choices and judgments are dependent on the subsequent results if artificial intelligence products are granted with intellectual property protection. As an institutional tool, the patent right should serve the policy development orientation in a specific period and in a specific environment, and the inventions and creations it protects should be beneficial to scientific and technological progress and economic and social development. #br#AI it can effectively promote the application and transformation of technology by empowering the "investment" subject of inventions generated,and it is also in line with the optimization of the economic effect of the patent system from the perspective of utilitarianism and incentive theory. While protecting private rights, it is necessary to establish a corresponding restriction and balance mechanism to avoid abusing the advantages of artificial intelligence technology to expand the scope of private rights. It is also essential to re-examine the criteria for creative judgment and give full play to the important function of the patent system in promoting scientific and technological progress and economic and social development.#br#
|
|
Received: 25 March 2021
|
|
|
|
|
|
| [1] SHLOMIT YANISKY RAVID, XIAOQIONG LIU. When artificial intelligence systems produce inventions: an alternative model for Patent Law at the 3A Era[J]. 39 Cardozo Law Review, 2018, 39(5): 2217-2263.[2] 朱雪忠, 张广伟. 人工智能产生的技术成果可专利性及其权利归属研究[J]. 情报杂志, 2018, 37(2): 69-75.[3] 刘银良. 论人工智能作品的著作权法地位[J]. 政治与法律, 2020，39(3): 2-13. [4] 洛克. 政府论[M]. 刘晓根，译.北京: 北京出版社, 2007: 70.[5] 刘强. 人工智能对知识产权制度的理论挑战及回应[J]. 法学论坛, 2019, 34(6): 95-106.[6] ANDREAS ENGEL.Can a patent be granted for an ai-generated invention[J]. GRUR International, 2020(5): 1-7.[7] 刘鑫. 专利权益分配的伦理正义论[J]. 知识产权, 2020, 34(9): 47-60. [8] Report of the IP5 expert round table on artificial intelligence, EPO [EB/OL]. (2018-10-31)[2021-02-09]. https://www.fiveipoffices.org/news/20190725_IP5_AI_report.[9] 丹·L·伯克，马克·A·莱姆利. 专利危机与应对之道[M]. 马宁，余俊，译. 北京: 中国政法大学出版社, 2013: 6.[10] 罗军. 专利权限制研究[M]. 北京: 知识产权出版社, 2015: 66.[11] 毛昊. 中国专利制度经济学: 从学科融合到科学决策[J]. 科学学研究, 2020, 38(11): 1976-1986.[12] DARYL LIM. AI & IP: innovation and creativity in an age of accelerated change[J]. Akron Law Review,2019, 52(3):813-875.[13] FRANCESCA MAZZI. Patentability of AI generated drugs[J]. European Pharmaceutical Law Review, 2020, 4(1): 17-33.[14] 彼得·德霍斯. 知识财产法哲学[M]. 北京: 商务印书馆, 2008: 208.[15] 王太平. 知识经济时代专利制度变革研究[M]. 北京: 法律出版社, 2016: 78.[16] 袁真富. 核心竞争力: 专利价值的深刻体现[N]. 中国知识产权报, 2012-09-24.[17] 王先林. 从个体权利、竞争工具到国家战略——关于知识产权的三维视角[J]. 上海交通大学学报(哲学社会科学版), 2008, 16(4): 5-13. [18] 方江宁. 知识产权法基础理论[M]. 北京: 知识产权出版社, 2014: 103.[19] 李想. 人工智能参与发明的授权问题探究[J]. 科技进步与对策, 2020, 37(15):144-151. [20] R ABBOT. I think therefore i invent: creative computers and the future of patent law[J].Boston College Law Review, 2016, 57(4): 1079-1126.[21] RAMALHO A. Patentability of AI-generated inventions: is a reform of the patent system needed? [EB/OL]. SSRN Electronic Journal. (2018-2-15)[2021-2-19].https://ssrn.com/abstract=3168703 or http://dx.doi.org/10.2139/ssrn.3168703. |
|
|
|
