Problems of patenting inventions created using artificial intelligence: doctrine and practice

Abstract

Keywords: intellectual property, artificial intelligence, inventor, software, examination,patent, digital transformation
 The dynamics of development of the worldmarket of artificial intelligence (AI), patent activity in this field, problematic issuesarising in connection with the patenting of inventions created using AI are studied.Aspects of doctrine formation and policy development in the field of intellectual property(IP) and AI are considered. Features of examination of patentability of inventionscreated with the use of AI in different jurisdictions (EPO, USA, Germany, China), foreignlegislation, doctrinal positions and case law in this field are analysed. Accordingto the analysis of the Artificial Inventor project, DABUS applications indicating theAI system as the inventor, submitted in 17 jurisdictions, were mostly rejected at thelevel of intellectual property offices and as a result of court appeals. In general, theapplicant failed to persuade the IP courts and agencies with his arguments, despitedifferences in national law and patent systems.
 The main provisions of the draft law «On Amendments to the Law of Ukraine» OnProtection of Rights to Inventions and Utility Models «on the regulation of relationsarising in relation to inventions and utility models created using artificial intelligence» are considered. It is concluded that the Law on the Protection of Rights to Inventionsand Utility Models excludes computer programs from patented objects. Theirminority is stated in the total number of filed applications and issued patents. Between1980 and 2018, only 740 such applications were published (1.26% of the total).The rules for compiling, submitting and reviewing an application for an invention(utility model) in Ukraine are outdated and do not reflect aspects of AI. Only a comprehensiveapproach (changes in legislation and improvement of expertise) will solvethis problem.