Can artificial intelligence be an "inventor" of patent in China?

2021-04-28
Borsam IP
未知————————————————

Recently, the USPTO (the United States Patent and Trademark Office) has published a petition decision explaining that, under current law, only natural persons may be named as an inventor in a patent application. It made clear that AI cannot be an inventor in the United States. Then, in other jurisdictions, can artificial intelligence be an "inventor"? 

                                                                  (The image is from the Internet)

EPO (European Patent Office) publishes grounds for its decision to refuse two patent applications naming a machine as inventor on January 28, 2020. The applications No. EP 18275163.6 and No. EP 18275174.3, with a machine called "DABUS" as an inventor, were refused by the EPO because they do not meet the legal requirement of the European Patent Convention that an inventor designated in the application has to be a human being and not a machine.
UKIPO (UK Intellectual Property Office) pointed out that, in Chapter 3 Sections 3.05 of Formalities Manual, where the stated inventor is an ‘AI Inventor’, the formalities examiner request a replacement Form 7 (Statement of inventorship). An ‘AI Inventor’ is not acceptable as this does not identify ‘a person’ required by law.  
There are relatively few relevant precedents or decisions concerning whether AI can be an inventor. In terms of the existing relevant legal regulations in most countries or regions, the current internationally applicable standard is that an inventor refers to a natural person.
China also adopted the above standard. Article 13 of Rules for the Implementation the Patent Law shows that “Inventor” or “creator” referred to in the Patent Law in China means any person who makes creative contributions to the substantive features of an invention-creation. The Guidelines For Patent Examination further points out that the inventor shall be an individual. That is, the inventor is defined within the scope of human. The machine or device, including AI, cannot be an “inventor” in China now.
However, can artificial intelligence become an "inventor" in the future?
It can be seen that with the development of AI, AI has gradually transformed itself from creation tools to self-creation. It can independently create new creations now, or make substantial improvements to existing products, and its creations can meet the substantive requirements for patentability such as novelty, inventiveness and practical applicability. Although AI cannot be an inventor legally now, we cannot deny the fact that it is an inventor essentially because it is AI that makes creative contributions to the substantive features. The existing patent legal framework and system may not meet the needs of such inventions well, but we believe that AI may be allowed to be an inventor in the future.
In the future, there may be the following ways to deal with the challenge of artificial intelligence to the role of "inventor":
1. AI can become an "inventor", but not a "patentee". The patentee can only be its owner or controller. The rights, such as implementation, maintenance, and licensing, can only be enjoyed by human beings, and the benefits obtained can only be owned by human beings.
2. AI can become both an "inventor" and a "patentee". Although artificial intelligence cannot independently exercise patent applications and the implementation, maintenance, and licensing of patent rights, the patent rights are owned by AI. These activities must be done by humans. However, humans are the only agents of AI.
In the future, the development of artificial intelligence technology will not only challenge the role of "inventor". Still, it will also have a profound impact on the patent system, but we believe that humans can cope with the many challenges brought about by the development of artificial intelligence technology.
 
Reference:
1. https://www.uspto.gov/about-us/news-updates/petition-decision-inventorship-limited-natural-persons
2. https://www.epo.org/news-events/news/2020/20200128.html
3. https://www.gov.uk/guidance/formalities-manual-online-version/chapter-3-the-inventor