Will AI Change How We Innovate? - A Study of Inventive AI, Patentability, and Inventorship in Light of the DABUS case

Detta är en Uppsats för yrkesexamina på avancerad nivå från Lunds universitet/Juridiska institutionen; Lunds universitet/Juridiska fakulteten

Sammanfattning: The U.S. painter Helen Frankenthaler, a behemoth of post-war American abstractionist painting, once described the act of inventing as an activity without rules. ”This is how art is born, how breakthroughs happen. Go against the rules or ignore the rules. That is what invention is about”, she is quoted saying in a 1994 interview with legendary publisher Ken Tyler. In contrast with the precise and careful methodology of the law, the process of the artist or the inventor appears wildly different. Yet, within the construct of patent law, the two are forced to coexist, creating a fascinating matrix wherein attempts can be made to bring structure to the complex and precision to the unprecise. This thesis aims to shine the light on an up until very recently rather undiscovered area of patent law, namely the patentability of AI inventions and AI’s ability to attain inventorship status. This has not been a major issue in the past, seeing how even the most advanced AIs at most could be considered advanced machinery, appropriate for use as a tool or a means to a specific end by a training professional. Today, however, AI systems have grown far more advanced. So advanced, in fact, that they seemingly invent on their own as well as in a manner not unlike how humans invent. Building on a foundation of existing Swedish and European patent legislation and a comparative study of relevant Australian, British, and American statutes and precedence, this thesis seeks to find whether now is the time to challenge the existing interpretation of AI’s standing vis-a-vis patentability and inventorship. In summary, this thesis sets out to answer the above by asking whether or not an AI may achieve inventive step, and whether or not an AI, in lieu of achieving legal status, may succeed rights related to any inventive works to a natural person in accordance with Swedish and European patent law. In its findings, this thesis argues that the concept of inventor and inventorship is neither exhaustively defined in a legal sense nor applied correctly in a dictionary sense. By reviewing Swedish and European patent law, this thesis also discusses alternative interpretations of relevant patent law provisions in contrast to the rapid development in the field of inventive AI.

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