Abstract
Although the accounting definition of assets contemplates intangible, abstract assets such as those embodied in intellectual property (IP), South African company law largely views IP as a legal and not a business asset. This paper tentatively suggests an approach that uses artificial intelligence (AI) to mitigate weaknesses in the South African patent law relating to the absence of patent searches and examinations. It is hoped that using AI will enable the filing of quality patents that satisfy the prescribed patentability criteria. High-quality patents will allow companies to accumulate patents as corporate assets. The approach is based on the algorithmic use of AI technologies such as machine learning, natural language processing, deep learning alongside the Internet of Things, and IP analytics to strengthen South Africa’s IP system and create asset value for corporations. The paper recommends using the proposed AI technologies by companies and the Patents Office to enable the filing of high-quality patents, which will lead to the accumulation of corporate assets in the form of patents. The methodology is doctrinal, and the paper relies on recent literature on IP and AI, South African law, case law and examples drawn from studies conducted in other countries.
Highlights
Introduction and backgroundThe importance and impact of intellectual property, known to the subject cognoscenti as IP, cannot be gainsaid
This paper tentatively suggests an approach that uses artificial intelligence (AI) to mitigate weaknesses in the South African patent law relating to the absence of patent searches and examinations
The methodology is doctrinal, and the paper relies on recent literature on IP and AI, South African law, case law and examples drawn from studies conducted in other countries
Summary
The importance and impact of intellectual property, known to the subject cognoscenti as IP, cannot be gainsaid. 9 The South African Patents Act 57 of 1978 provides for licences generally in ss 53 to 57 while the relevant Agreement on Trade-Related Aspects of Intellectual Property Rights (1994) (TRIPS Agreement) provisions dealing with licences are Arts 21, 28.2, 31, 31bis, 37.2 and 40. Most forms of IP will be created through human endeavour, while advances in technology spurred by the fourth and other industrial revolutions imply that it may be possible to generate IP using machines. It aptly illustrates how applying strict patentability criteria may be aided by AI to Protection of Literary and Artistic Works, an international agreement governing copyright, which was first accepted in Berne, Switzerland in 1886. The paper optimistically concludes on a futurist note that AI will solve most problems associated with the granting of "wrong" patents before sketching a brief research agenda for the future
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