Robotar som uppfinner? – en patenträttslig studie av uppfinnarskap i ljuset av AI:s ökande medverkan i uppfinningsprocessen

Sammanfattning: Artificial intelligence (AI) is predicted to unleash a new industrial revolution, which is likely to leave no part of society untouched. Following the development of increasingly advanced AI-systems, patent offices around the world have begun to question the implications of this technology for the patent system. One of these queries is whether the AI-system itself, due to the increased participation of AI in the inventive process, can meet the requirements for inventorship and be recognized by the legal system as an inventor. Another enquiry is which natural persons meet the requirements for inventorship in an invention process that utilize an AI-system. A third question is whether it is possible that an invention can be produced without there being any natural person who meets the requirements for invention. This thesis attempts to answer these three questions by using a model for the participation of two different AI systems, artificial neural networks and evolutionary algorithms, in the invention process and thereafter analyzing such a process based on the Swedish rules of inventorship. The thesis finds that an AI-system cannot be recognized as an inventor for three different reasons. First, the AI system is unable to meet the requirements for inventorship. Second, the AI-system lacks legal subjectivity, which makes it impossible for the AI-system to be recognized as an inventor by the legal system. And third, the Swedish patent law only allows natural persons to be identified as inventors in the patent application. Furthermore, neither the purpose of the patent system as a whole or the purpose of identifying an inventor in the patent application requires that AI-systems are identified as inventors. The technological advance of AI must therefore be dealt with within the framework of the traditional rules of inventorship for natural persons. An inventive process that involves AI-systems contains several possible contributions that are sufficient for inventorship. It is theoretically possible for an AI-system to create a new solution to a technical problem without there being any natural person involved enough to be classified as an inventor. However, it is not possible for the technical solution in question to fulfill the requirement of an inventive step. It will therefore be possible, for all materially patentable inventions developed with the aid of an AI system, to identify one or more natural persons who meet the requirements for invention. In summary, the patent system’s rules of inventorship are currently well-suited to handle an invention process with increasing participation of AI-systems