Summoning a New Artificial Intelligence Patent Model: In the Age of Pandemic

49 Pages Posted: 30 Jun 2020 Last revised: 17 Sep 2020

See all articles by Shlomit Yanisky-Ravid

Shlomit Yanisky-Ravid

Yale Law School; ONO Academic College; Yale University - Information Society Project; Fordham University, School of Law

Regina Jin

Fordham Center on Law and Information Policy (CLIP) - IP- AI & Blockchan Project

Date Written: June 4, 2020

Abstract

To combat the fast-moving spread of the pandemic we need an equally speedy and powerful tool. On the forefront against COVID-19, for example, AI technology has become a digital armament in the development of new drugs, vaccines, diagnostic methods, and forecasting programs. Patenting these new, nonobvious, and efficient technological solutions is a critical step in fostering the research and development, the huge investments as well as the commercial processes. This article considers the challenges of the current patent law as they apply to AI inventions in general and especially in the age of a global pandemic. The article proposes a novel solution to the hurdles of patenting AI technology by establishing a new patent track model for AI inventions (including the inventions that are made by AI systems and creative AI systems themselves). Unlike other publications promoting either complete abandonment of AI related patents, or advocating to maintain current patent laws, or recommending minor adjustment to patent laws, this article suggests a novel model of separate patent venue solely targeting AI inventions. The argument of this article is based on four pillars: the difficulty of having a patent-eligible subject matter, the hurdle of the “blackbox” conundrum, the confusion of who is “a person of ordinary skills in the art” (“POSITA"), and the criticality of establishing a new AI patent track model, a crucial step, especially during a global epidemic.

The first pillar of the argument is the difficulty of having a patent-eligible subject matter in AI inventions. We therefore propose the new AI patent track model that would extend the scope of patent protection to cover creative AI systems, including both the algorithms and trained models, and AI-made inventions in order to, inter alia, incentivize investments of the “Multi-Players”.

The second pillar of the argument of the argument is the hurdle posed by the “blackbox” conundrum of AI systems that undermines the explainability and transparency of the inventions. In analogy to already existing rules applied to microorganism patents that are hard to describe, we advise a depository rule for AI working models to sufficiently describe the otherwise inexplicable inventions.

The third pillar arises from the confusion of who is a person of ordinary skills in regard to the nonobviousness assessment of AI inventions. We submit an alternative standard of “a skilled person using an ordinary AI tool in the art” under the new track model to enable the evaluation of the patentability of complex AI inventions.

The fourth pillar of the argument is the criticality of establishing a new AI patent track model on the grounds that the current patent law regime has posed substantial hurdles and uncertainties for patenting AI inventions with regard to almost all patentability requirements. We analyzed each of the requirements to demonstrate that most, if not all, aspects of patent law are not suitable in the AI era; only a revolutionary new patent model specific for AI inventions could solve all the concerns while maintaining the patent incentive for innovations.

Our model also suggests an expedited examination with the aid of AI tools and a shortened patent lifetime in light of the fast AI development and technology elimination speed. The article concludes with the hope to harness AI technology for the wellbeing of humanity, in general and especially during tough times in the current COVID-19 era and in general.

Keywords: Artificial Intelligence; Patent; Pandemic; COVID-19; Intellectual Property; Investments; Incentive; Advanced Technology: Digital Era; Law and Economics

Suggested Citation

Yanisky-Ravid, Shlomit and Jin, Regina, Summoning a New Artificial Intelligence Patent Model: In the Age of Pandemic (June 4, 2020). Michigan State Law Review, Vol. 2021, No. 3, 2021, Available at SSRN: https://ssrn.com/abstract=3619069 or http://dx.doi.org/10.2139/ssrn.3619069

Shlomit Yanisky-Ravid (Contact Author)

Yale Law School ( email )

127 Wall Street
New Haven, CT 06511
United States

ONO Academic College ( email )

Tzahal Street 104
Kiryat Ono, 55000
Israel

Yale University - Information Society Project ( email )

P.O. Box 208215
New Haven, CT 06520-8215
United States

Fordham University, School of Law ( email )

140 West 62nd Street
New York, NY 10023
United States

Regina Jin

Fordham Center on Law and Information Policy (CLIP) - IP- AI & Blockchan Project ( email )

Fordham Law School
140 West 62nd Street
New York, NY 10023
United States

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