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Shift In The Understanding Of “Inventor”

The post examines the ambiguity in defining "inventor" under Indian patent law, exploring the potential inclusion of AI as inventors. It highlights legal challenges, statutory interpretation, and the broader implications for innovation and patent protection.

Shift In The Understanding Of “Inventor”
Image generated using Microsoft Designer AI tool by Advanced Study Institute of Asia
By Avantika Shukla and Shubhang Shukla

Defining Inventorship and Personhood Under Indian Patent Law

Under the Indian Patent regime, the term “inventor” is not explicitly defined, leading to ambiguities in interpretation. The Patents Act of 1970 frequently employs the term "inventor," especially in the context of patent grants as outlined in Section 6. The dictionary definition of “inventor” implies it is an agent noun, which traditionally has been understood to refer exclusively to natural persons. However, the ambiguity arises when considering whether the term "inventor" could be extended to include non-human entities, such as AI. 

Section 6 of the Patents Act specifies that a patent applicant must be a "person." This raises the fundamental question: What constitutes a "person" under the law? Section 2(1)(s) of the Act provides that "person" includes the Government, which is not a natural person. This inclusion suggests that the term "person" is not limited to natural persons but can also encompass legal or artificial entities.

Scope of Personhood: Potential Inclusion of AI

The interpretation of "person" to include entities other than natural persons implies that the definition is inclusive and not exhaustive. This interpretation allows for the possibility that legal or artificial persons, such as corporations, and potentially AI, could be recognized as "persons" under the Act. The Government’s inclusion as a "person" sets a precedent that could logically extend to other non-natural entities, including sentient AI. 

However, this inclusive interpretation has not yet been fully embraced by Indian judicial bodies or patent authorities. In the case involving DABUS (Device for Autonomous Bootstrapping of Unified Sentience), an AI system created by Dr. Stephen Thaler, the Indian Controller General of Patents did not recognize DABUS as an inventor. The patent application, which was for two inventions created solely by DABUS—a beverage container and a flashing light—was denied on the grounds that DABUS did not qualify as a "person" under Sections 2(1)(s) and 6 of the Patents Act. (Sanyal & Lobo, 2024)

Legal and Legislative Challenges

The rejection of AI as an inventor by the Indian Controller General of Patents highlights a conflict between the statutory language and its judicial interpretation. Courts in India have consistently held that only natural persons who contribute their skill or knowledge towards innovation can claim inventorship under current law. This interpretation seems to be rooted in an understanding of the term "person" as excluding AI or other non-human entities, despite the broader statutory language.

The inclusion of the Government as a "person" under the Act suggests that the legislative scope was intended to be broader than just natural persons, possibly encompassing legal or artificial persons. However, judicial interpretation has been narrower, focusing on natural persons as inventors.

There is some legislative support for expanding the definition of "inventor" to include AI. The Parliamentary Standing Committee on Commerce has suggested revisions to the current legislation to recognize AI as an inventor. This recommendation acknowledges the evolving landscape of innovation and the potential need for the law to adapt accordingly. (Reddy, 2021, pp. 16-18).

Practical Concerns and Procedural Implications

One reason for not recognizing AI as an inventor may stem from perceived procedural difficulties in granting patents to AI, given that it is not a natural person. However, the Act does not require that the inventor and the grantee of a patent be the same entity. Sections 6(1)(b) and (c) of the Act provide scenarios where the patent can be granted to someone other than the true and first inventor, such as an employer who owns the invention created by an employee. This provision could analogously apply to AI systems where the operator or owner of the AI could be considered the grantee of the patent, even if the AI itself is the inventor.

For example, if a person ‘A’ develops a sentient AI system that subsequently invents a new technology, ‘A’ could be eligible to receive a patent for this invention. If another person applies for the patent without ‘A’s consent, ‘A’ would have the right to claim ownership of the patent as the owner of the AI that made the invention. This suggests that the current legal framework could accommodate AI inventors by assigning patent rights to the AI's operator or owner, similar to how inventions created by employees are handled.

Implications of Recognizing AI as an Inventor

Recognizing AI as an inventor would align with the objectives of patent law, which are to promote disclosure and encourage the industrial application of new inventions. If AI inventions are not recognized under patent law, developers might be discouraged from disclosing their inventions, potentially opting to keep them as trade secrets. This could stifle innovation and hinder the commercialization of new technologies. 

On the other hand, failing to recognize AI as an inventor could lead to complications and uncertainties about who should be credited as the inventor. As Justice Beach articulated in a related judgment, if the output of an AI system is considered the invention, it is unclear who should be recognized as the inventor: the programmer, the owner, the operator, the trainer, or someone else. In cases where the AI operates with a high degree of autonomy, the most accurate approach might be to recognize the AI itself as the inventor. Otherwise, there may be situations where no human can rightfully claim inventorship, thereby preventing the patenting of the invention altogether. (Thaler v Commissioner of Patents, 2021, para. [131])

Conclusion

The question of whether AI can be recognized as an inventor under Indian patent law raises significant legal and philosophical issues. The current legal framework, while not expressly prohibiting AI from being considered an inventor, has been interpreted in a way that excludes AI. However, the statutory language, especially the inclusive definition of "person," suggests that there may be room to expand the interpretation to include AI as inventors.

Recognizing AI as an inventor would not only be consistent with the inclusive language of the Patents Act but would also promote innovation by ensuring that inventions generated by AI are disclosed and protected under patent law. This could help India position itself as a favourable destination for patent filings by AI innovators, aligning with global trends towards recognizing AI contributions in various fields. Legislative changes may be necessary to clarify the status of AI under patent law and address the practical and procedural challenges involved in granting patents to non-human entities.

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The short article "Shift In The Understanding Of “Inventor” " is co-authored by Avantika Shukla and Shubhang Shukla. Avantika Shukla is an advocate in the Delhi High Court and an alumni of National Law University, Delhi. Shubhang Shukla holds a BA LLB degree from the Faculty of Law, Banaras Hindu University, with honours in Intellectual Property Rights.

References

Sanyal, N. & Lobo, S. (2022). Inventions by Artificial Intelligence: Patentable or Not? Retrieved from https://www.btgadvaya.com/post/inventions-by-artificial-intelligence-patentable-or-not?

Reddy, V. V. (2021). Review of intellectual property rights regime in India (One Hundred and Sixty-First Report of the Department Related Parliamentary Standing Committee on Commerce, pp. 16–18). Government of India.

Thaler v Commissioner of Patents [2021] FCA 879. (2021). Federal Court of Australia. https://www.judgments.fedcourt.gov.au/judgments/Judgments/fca/single/2021/2021fca0879


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