AI - creator in terms of intellectual property rights? 2023-02-10

According to a recent paper in Nature, there are at least four articles that list an AI tool as a de facto co-author. On the other hand, both the European Patent Office (EPO) and the USPTO have issued decisions that AI can not be accredited de jure (officially) as the inventor on a patent.
The aforementioned articles were co-written either by ChatGPT, which has recently gained notoriety, as well as by GPT-3, and accredited as coauthors on articles. Some of these articles were also published in scientific journals. This has spurred a lively debate about the role of AI tools in academic literature, with editors being its first “line of defense” and some pointing out that the AI cannot really be an author, as it cannot take responsibility. Results for now? Undecided, yet there seems some are planning retractions.
We get a different picture if we ask ourselves if an AI tool can be considered an inventor on a patent. At EPO there are at least two interesting cases related to this issue (EP 18 275 163 and EP 18 275 174 from 2020) and related decisions (such as J 0008/20). In these cases, DABUS, which was described as "a type of connectionist artificial intelligence", was designated as the inventor. In broad strokes, Artificial Intelligence (or Machine Learning) may contribute to the technical character of a claimed invention if the AI/ML is claimed for a specific technical purpose or the AI/ML is specifically designed based on technical considerations relating to the internal functioning of the computer. But the EPO's answer to the potential of AI being an inventor of a patent? A definite “no”. EPO is clear: a machine is not an inventor within the meaning of the European Patent Convention. Across the pond, the USPTO has come to a similar conclusion: only a natural person can be an inventor.
So as things stand now, AI cannot be a de jure inventor of a patent, but can be (and is) de facto listed as a co-author on scientific articles. Why does all this even matter? Allowing AI to own IP could, in the future, have consequences for enforcement and infringement of IP.
In our IP Monitor we will also point out, in particular, the AI-supported tools and functionalities. If you want to engage in further discussions, join us in one of our upcoming I2P4Green courses, which will be available by the end of this year and/or the beginning of the next. Stay tuned!



Tamara Besednjak Valič

Faculty Of Information Studies In Novo Mesto



Virág Szuák

Pannon Business Network Association