Special legislation will be required to protect works generated by Artificial Intelligence, pointed out Barbara Fiacco, from AIPLA – American Intellectual Property Law Association, Vagner Latsch, from the BPTO, and Edson Souza, from Bayer, panelists on “Patents and IA: statistics, claims and the controversy of ownership”, at ABPI’s 40th ABPI Congress, mediated by lawyer Cláudio Barbosa, a senior partner at Kasznar Leonardos. Meanwhile, patent applications linked to complex algorithm systems are increasing exponentially. According to a study by WIPO (World Intellectual Property Organization), there are already 340,000 applications for AI patent filings in the world, led by the United States. In Brazil, which occupies the 14th place in the ranking, the BPTO has already registered more than 5,000 filings.
According to Latsch, at the BPTO, AI patent applications grow at a greater rate than total filings. As for the technical examination, he distinguishes between the artificial intelligence inventions used to reach results and those that generate new inventions. He explained that the inventions that use AI are a challenge for the examiner, since in many cases there is descriptive insufficiency, either concerning the neural network or the architecture used, for example. The creations that generate new inventions are not yet part of the examiners’ routine. “The biggest problems for the exam are yet to come, including the issue of ownership”, he said.
AIPLA President Barbara Fiacco raised several questions regarding the intellectual property of AI-generated inventions. She questioned the requirement for a natural person to grant a patent, required by the USPTO and EPO. “We need incentives in AI creations for the invention to occur”, she said. For her, the invention created by AI should not have an ineligible patent simply because it was made by a machine. “We have to think that, yes, it can be patentable and I think this is a very interesting beginning, it opens the way for the future, for ownership and other issues that need to be worked on”.
.For Souza, Bayer’s PI legal manager, there are no ready answers to the ownership issue. “There is no express prohibition (nor permission) in most international and Brazilian laws for IP machines/systems to be inventors”, he pointed out in his presentation, referring to the Dabus Case in which a patent generated by AI was applied for and denied by the US, UK, and European Union patent offices because it is not a natural person’s invention.
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