FFCON21 Breaking Barriers May 11-13, 2021

Our patent and copyright system isn’t prepared for inventions or designs by AI

Sifted | Andreas Leupold | Mar 25, 2021

AI assisted design - Our patent and copyright system isn’t prepared for inventions or designs by AI

What does a chair from furniture manufacturer Kartell have in common with a rocket engine by the software powerhouse Hyperganic? They were both created by generative design — in other words, made by AI.

Our patent and copyright system isn’t prepared for inventions or designs by AI.

The buzzword ‘generative design’ stands for a computer-aided design (CAD) process. But it’s a far cry from simple CAD design, using algorithms created by AI to generate a first set of designs for a product based on certain input parameters. It will then continue to refine these designs with each iteration until the final product materialises.

Combined with industrial 3D printing, the result is a technically superior product that weighs less, has better functional features and is often less prone to wear and tear.

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And this combination is discovered by more and more industry heavyweights: Airbus is using generative design and 3D printing for aeroplane interiors; US sports equipment company Under Armour is using it for improving the damping properties of its 3D printed running shoes; and German car manufacturer BMW is using it to create automotive parts that are up to 50% lighter than their conventional counterparts.

But generative AI design won’t just disrupt conventional design thinking. It will also change our patent and copyright system, which isn’t prepared for inventions or designs by AI.

Creative machines lose the first legal round

As chance would have it, the same year — 2019 — that Kartell presented its AI chair at Milan’s furniture fair, Stephen Thaler, a pioneer in ‘artificial invention’ claimed that he had triggered “the big bang of machine intelligence with his ‘creativity machine’, the ‘DABUS’.” Dabus was hailed by its creator as the first “true artificial inventor“ — not a physical machine, but a concept that employed artificial neural networks and parallel computing to generate new ideas or even create art.

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He applied for patent protection in the US, the UK and Europe based on his ownership of said machine — not for the machine itself, but for the inventions it had made. The patent offices of all three jurisdictions denied Thaler’s petitions on the grounds that only natural persons, not machines, can be inventors and that patent law consequently does not permit a machine like DABUS to be named as the inventor on a patent application.

For the legal community it was a wake-up call that a paradigm shift on inventorship was on its way.

For Thaler this was a defeat. But for the legal community it was a wake-up call that a paradigm shift on inventorship as we know it was on its way and had to be dealt with.

The World Intellectual Property Organisation initiated an ongoing discussion on intellectual property and AI that continued in 2020. It led to well over 80 questions on how the law should deal with the challenges to industrial property rights and copyrights posed by AI.

While it is virtually undisputed that AI inventions are not patentable under the current law in the EU, UK and US, with the number of works and inventions being created by AI increasing, there is growing momentum around the idea that they need some kind of legal protection.

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Just what the right vehicle might be is still controversial, however. Patent protection was initially devised to help motivate human inventors to innovate and share the results. But unlike human inventors, AI cannot be motivated to innovate by the prospect of obtaining patent protection but only be instructed to innovate regardless of patent protection.

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