Patentability of AI-Generated Inventions: Is a Reform of the Patent System Needed?

Abstract

As technology advances, artificial intelligence (AI)-generated inventions – i.e., inventions created autonomously or semi-autonomously by computer systems – are deemed to becoming more common. The human ingenuity in such inventions is less visible, while at the same time the inventing activity becomes easier, as most of the mental effort is passed on to the AI. However, this scenario makes it harder to assess whether the invention possesses an “inventive step” – a condition for patentability that requires the invention to be non-obvious to a skilled person. Indeed, a given AI-generated invention might be non-obvious to a skilled person; but it will probably be obvious to a person that has access to a similar AI. The main aim of this research is to assess whether patent laws are fit for purpose with regard to the patentability of AI-generated inventions, in particular in what concerns the inventive step requirement. With that objective, the research carries out a comparative analysis of the inventive step (or non-obviousness) requirement in Japan, the European Union and the United States. The research will conclude with recommendations towards an international harmonization of the interpretation of, and practices related to, the inventive step requirement in the field of AI-generated inventions.

Keywords: artificial intelligence, intellectual property, patents, inventive step, non-obviousness