AI창작물의 특허보호 방안

Abstract

Today's AI invention refers to cases where data preprocessing, such as data structures for learning which process collected data, learning model definitions required for learning, physical implementations, physical implementations performed by applying Deep Learning learning programs, and derived learning completion models (AI-based SW) are implemented in computer-like hardware in algorithmic form, and these AI inventions satisfy the establishment of invention and are included in a target to be patented. However, input data are input into the learning completion model (AI-based SW), and the AI creation in that the AI creates by the input data is not patentable because it is not the human invention but the invention generated by the AI, which is non-natural, under the current patent law. Therefore, there is a problem that the AI technology is not sufficiently patent-protected under the current patent law. In particular, there is various problems: (i) whether the AI creation created by the AI can be regarded as an invention created by humans (natural people), (ii) countries around the world recognize only humans as inventors, whether the AI can be recognized as an inventor, (iii) whether there is a way to recognize the AI as an inventor, (iv) whether there is a way to solve the problem of authority and duty as a rightful person, responsibility for exercise of rights, etc. that may arise if the AI is recognized as an inventor. In this article, we considered the revised plan of the Patent Act to include AI-generated creations as targets to be patented. As a result, the definition of invention under Article 2 of the Patent Act 1 will be specific to human inventions, such as Article 101 of the US Patent Act, and If there is a substantial "human contribution" for AI to create, not an artificial act of humans, the revised plan is needed to introduce AI-generated AI creations and definitions of AI inventions on the premise of that "human contribution." For those who are eligible for patents, it is needed to introduce a regulation in Article 33 of the Patent Act stating that the inventor for AI creations is to be the human on the premise of "human contribution."