Transparency in the Patent System – Artificial Intelligence and the Disclosure Requirement
Forthcoming in: Žaneta Pacud and Rafał Sikorski (eds.), Rethinking Patent Law as an Incentive to Innovation, 2019.
15 Pages Posted: 14 Jan 2019 Last revised: 22 Mar 2019
Date Written: January 3, 2019
The patent system is fundamentally challenged by the recent breakthroughs in Artificial Intelligence (AI). While issues such as patentability and non-obviousness of AI-related inventions have already attracted attention, this paper deals with the specific research question whether patent law’s disclosure requirement is (also) under attack by AI. Building on the presumption that the patent system’s legitimacy – at least to some extent – is founded on a working disclosure requirement, the issue at hand is highly relevant: If the disclosure requirement were fundamentally challenged by AI, the patent system would run the risk of losing its legitimacy.
The research question can also be framed through the lens of transparency. Conditioning the grant of patents on the disclosure of inventions by patentees, the patent system arguably aims to increase transparency. But as AI is scolded for being particularly non-transparent and often compared to a 'black box' one might ask whether the use of AI in the inventive process jeopardises or decreases the desired transparency.
This paper argues that the disclosure requirement indeed is challenged by AI, but that the challenges are less grievous than in other areas of patent law. To be more precise: use of AI may lead to new disclosure deficits and some AI-related patents may be considered insufficiently disclosed because they lack reproducibility. But timely anticipation of these risks allows patent law to adapt, particularly because AI is not only a threat but could also remedy imbalances in the disclosure requirement. Provided that the issues are addressed properly, AI may lead even to more instead of less transparency.
The research question will be answered in four steps: The paper first examines the disclosure requirement in patent law (II.) and the state of the art regarding AI (III.). It then combines these parts in order to address the looming challenges of an AI-confronted disclosure requirement (IV.) before highlighting new opportunities brought about by AI (V.) and drawing conclusions (VI.).
Keywords: Patent Law, Artificial Intelligence, Disclosure
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