• Advancements in AI are nearing a technological tipping point and are encroaching on areas once reserved for those requiring human creativity
  • Patentability of AI-created inventions, liability for infringement by AI, and patent subject-matter eligibility of AI technologies are the top three areas of patent law that will be disrupted by AI
  • First white paper released by the World Economic Forum Center for the Fourth Industrial Revolution’s Artificial Intelligence and Machine Learning project team with Baker McKenzie

AI is here and changing much of our world for good and has huge potential to do more for humanity. At the same time it presents certain challenges to existing legal frameworks. The patent system was designed to incentivize innovation by granting exclusive rights to inventors for a limited time in exchange for their inventions. But it was encoded into law when there were no computers.
With AI entering areas once reserved for human ingenuity, it is on a collision course with numerous facets of patent law. The white paper “Artificial Intelligence Collides with Patent Law," jointly produced by the World Economic Forum Center for the Fourth Industrial Revolution and Baker McKenzie, provides an overview of AI’s recent technological advancements, and explores the top patent law issues that will be impacted by AI.

US patent law has been able to weather the effects of previous technological changes, and has so far been able to achieve its main objective of enhancing social welfare through the promotion of innovation. But the anticipated disruptions from AI will be far more pervasive than those of previous technological changes, and AI will challenge the core legal standards that serve as safeguards of patent law. Insufficient preparation for the impending impact of AI could thus result in an outdated patent system that is no longer able to fulfil its intended functions.

“We are about to witness a collision between artificial intelligence and various aspects of patent law,” said Kay Firth-Butterfield, Head of Artificial Intelligence and Machine Learning at the World Economic Forum Center for the Fourth Industrial Revolution. “This technology is going to change the game for many sectors, and will impact numerous regulations and legal fields.”

“Intellectual property practitioners should be aware of these emerging patent law issues, and contribute to the much needed dialogue on how patent law should evolve to address such legal implications,” said Yoon Chae, Intellectual Property Associate at Baker McKenzie, and Fellow of the World Economic Forum Center for the Fourth Industrial Revolution. “For example, AI’s ability to ‘invent’ or to infringe patent claims could shift the legal standards that govern those issues.”

Key Advancements:

  • Popularity: The number of patents on AI technologies is rapidly rising across the globe.
  • Inventive Ability: AI is now able to generate inventive ideas and also help draft patent applications, encroaching on to territories that have historically required “human ingenuity.”
  • Acceptance: More than half of US consumers predict a better future from AI.

 

Expected Disruptions:

  • Subject-Matter Eligibility: The legal standard on patentable subject matter became more stringent in 2014, creating tensions with patenting AI technologies. Given the innovative potential of AI technologies, there must be further discussions on whether the presently-heightened standard promotes—or stifles—innovation. To the extent any patent law adjustments are deemed necessary, there must be dialogues on how to implement those changes in ways that can maximize the social and ethical benefits.
  • Patentability & Inventorship: Although US patent law does not expressly require a particular threshold of human input in the invention process, it frames the questions of inventorship and patentability in terms of human creation. Now that AI is able to come up with inventive ideas, is there any need for the patentability standard to adjust to accommodate such AI “inventors”? In other words, should inventive ideas produced by AI be protected under patent law? If so, who should be awarded with inventorship? These questions must be explored while being cognizant of their effects on human innovation and social values.
  • Liability: Current US laws do not acknowledge patent infringement that is independent of human involvement. Given that most AIs now have the technological capacity to infringe patent claims, who should be held responsible for actions taken by AI? Should its developer or another person be held liable? Or are there other innovative ways of approaching liability?  

The white paper is the first released by the Artificial Intelligence and Machine Learning project at the World Economic Forum Center for the Fourth Industrial Revolution. It was co-written by Baker McKenzie, the only global law firm to partner with the Center. Baker McKenzie has a longstanding commitment to the Forum and to innovation in the legal industry. As one of the largest law firms in the world, Baker McKenzie launched its global innovation strategy in early 2017 and is actively exploring different models to foster innovation in the legal ecosytem, launching or partnering with innovation hubs in key regions.

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