As technological advances allow for previously unimagined innovations, law expert Roy Taberer argues, patent legislation will have to adapt or risk becoming irrelevant

As artificial intelligence (AI) – essentially, intelligence demonstrated by a machine – continues to change the way society works, plays and functions, so too will it have a profound impact on the legal profession, including patent law.

A field of computer science, AI encompasses machine learning and robotics and spans the intelligence attributes of reasoning, knowledge, planning, learning and language processing. Inherent in most AI systems is the use of algorithms – a set of unambiguous logical instructions programmed into a computer, allowing it to solve problems – with the ability to learn from data without requiring software updates.

AI is increasingly being used around the world by companies in a myriad different industries to solve complex and data-heavy problems, including forecasting, analytics and managing demand for products and services. It is also being used to automate previously labour-intensive data-input functions.

As technological advances allow for previously unimagined innovations, patent law will have to adapt or risk becoming irrelevant.

One of the biggest challenges related to AI is that most legal systems – with the exception of Saudi Arabia’s – do not recognise AI as a legal subject that is capable of holding rights and incurring liabilities. Saudi Arabia made history in 2017 when it granted citizenship to an AI-powered robot. New innovations, however, increasingly involve both a human coinventor and machine intelligence, or AI.

In the US, the courts have consistently upheld the view that the mental act of invention requires human, individual intelligence. As a result, corporates are not capable of invention, although they are capable of owning an invention which has been acquired from the inventor.

South African law allows for either the inventor or a corporate entity to acquire the rights to the invention and to apply for a patent to that invention. In the absence of a definition of the word ‘inventor’, it is generally accepted that only a natural person can invent.

In both the US and South Africa, the inventor is recognised as the initial owner of the invention and their identity needs to be disclosed in any patent application. Should AI co-contribute to an invention along with a human inventor, as is increasingly anticipated in the future and taking practice into account, the human inventor would be the sole inventor.

A problem arises, however, if the invention is created solely by AI, as most legal systems around the world, including in South Africa and the US, do not recognise AI as a legal person or allow patent applications to be filed without listing the human inventor. In these instances, the rights to the patent would have to accrue to either the owner or the developer of the AI.

As processing speeds increase and AI expands in terms of both its complexity and its abilities, it will start to invent, and infringe upon existing intellectual property rights, without human input. This will have a fundamental impact on the law in general and intellectual property law in particular and will require countries around the world to face the question of if and when to start recognising AI as a legal subject rather than a legal object.

There is little doubt that AI will push the boundaries of law – and patent law, in particular – in the future. For one thing, failure to recognise AI as a kind of legal subject will cause a number of legal principles to fail.

However, as much as there is uncertainty around AI, as both an inventor or the subject matter of an invention, this should not deter innovators and inventors in this space. While the patent system is meant to protect technical innovations, in my experience, software-related or -driven inventions – including those based on AI – are not always a good fit for protection under patent law and are frequently better protected by copyright law, although this too does not always provide a perfect solution.

Instead, I often advise clients in this space to capitalise on their lead advantage, invest in development and focus their energies on keeping one step ahead of competitors rather than obsessing about getting protected before taking that first step. A combination of copyright law and confidentiality clauses is often the best way of protecting valuable source codes inherent in innovations of the new economy.

However, given the imperfect solution provided by the current intellectual property law regime for all information technology and AI innovation, it is a good idea to seek legal advice from a specialist patent attorney in order to develop an appropriate legal framework to most effectively stay ahead of the competitor.

Roy Taberer is a Cape Town-based intellectual property attorney with extensive experience in patents, designs, trademarks and copyright - roy@tabererattorneys.co.za