När AI blir uppfinnare och människan assistent - En analys av det patenträttsliga begreppet uppfinnare

Sammanfattning: “We are both created and create. Why cannot our creations also create?” That was the statement of the Australian judge in the DABUS patent case. AI is a rapidly developing and often discussed aspect of society where its accelerated development makes it difficult for legislation to advance at the same rate. The concept of inventor in patent law is based on the fact that it is a natural person who is the inventor. It was legislated during a time when AI did not exist; therefore it challenges the concept of the inventor and creates new, complex questions. AI can be applied for different purposes and can be a helpful tool as well as it can be used for evil purposes. The question is concentrated on AI as an inventor, and in order for there to be transparency and continued trust in patent law, the question needs to be reconsidered. The essay aims at the possibilities of patenting inventions made by AI. In the light of the DABUS case, there are various decisions from South Africa, Australia and Germany that may change patent law’s approach to the concept of inventor. The solution is not to stop AI but to develop new possibilities. For it to be possible for AI to be an inventor, there are two options. One is to give AI legal capacity through sui generis and the other is to make AI co-inventors. By allowing AI to have its own legal gender, liability issues remain, but this could have been resolved by tailoring the legislation. If AI were to become a co-inventor, a physical person is still needed to be responsible. AI as co-inventor gives a picture of what the concept of the inventor looks like in reality when AI invents and where humans are involved in the process through programming. The conclusion of both options is that AI as an inventor does not replace humans. On the contrary, humans will play a large role for AI to function as a helpful tool with good ethics. As AI invents and humans become assistants, it aims to continue to drive the primary purpose of patent law, to promote new innovations and technologies.