Sustainable Patent Governance of Artificial Intelligence: Recalibrating the European Patent System to Foster Innovation (SDG 9)

Abstract

This chapter reflects on what a sustainable patent governance looks like in the age of the rise of inventive AI. To do so, we critically evaluate the relationship between Artificial Intelligence, European patent law, and sustainability with a focus on the Sustainable Development Goal 9, i.e. to build resilient infrastructure, to promote inclusive and sustainable industrialisation, and to foster innovation. In particular, we consider SDG targets 9.1, 9.2, and 9.5 for their emphasis on equitable access to innovation, inclusive industrialisation, and an imperative to consider the national circumstances of developing countries. While the contribution of patent law to SDG 9 may prima facie appear as straightforward – both are all about promoting innovation – we problematise this relationship by shedding light on the unsustainability of patents. In Section 1, we analyse patent data related to climate change mitigation technologies to discover that, under the European Patent Convention, there has been a significant growth in AI-related patenting, but that developing countries are being left behind. In Section 2, to overcome the decreased access to innovation stemming from an inventive step requirement that does not match the reality of AI-powered ingenuity, we focus on AI datasets and suggest a recalibration that revolves around the concept of Therapeutics Data Commons. In Section 3, we suggest a more nuanced understanding of AI inventorship to include Global South perspectives.

Keywords: sustainable AI, climate change mitigation technologies, European patent law, inventive step, AI inventorship, sustainable patent governance, SDG 9

JEL Classification: K39, O31, O32, O34