For the first time, the European Patent Office has been called upon to rule on an invention attributed to a machine. The organization decided in December: it only protects advances that have human inventorship.
Copyright by Aline Bassin
This is not an avant-garde algorithmic advance intended to generalize the use of autonomous cars. Even less than a revolutionary drug that a computer would have made alone in a laboratory. No, the first patent application filed for an artificial intelligence (AI) concerns a food container. What is special about this box? Its shape, called fractal, was imagined by the creativity machine of the American laboratory Imagine-Engines. The European Patent Office rejected in December the two patent applications associated with this innovation, recalling that it limits its sphere of protection to breakthroughs made by human beings.
A logical decision
Long awaited, this verdict does not surprise anyone. “The requester likely wanted to provoke debate,” said Philippe Schmitt, of the Parisian law firm Philippe Schmitt Avocats, specialized in intellectual property. “He could very easily have attributed his invention to a human being, while other cases are much more difficult to decide.”
The European Patent Office indeed confirms a growing demand for protection linked to AI, an evolution which poses new challenges: “Deciding on this type of innovation is more complicated,” observes Philippe Schmitt, “because computers are able to follow logic completely foreign to a human being. They are therefore very difficult to assess. “Also specializing in patent law, German and European patent attorney Michael Fischer of Venner Shipley LLP adds:” When you protect this type of technology, it can then possibly be difficult to prove that the patent has been infringed.”
Risks of crowding out human beings
Assigning patents to machines will not resolve any of these issues, say the two experts, who have no doubt that the competent authority in the United States, also called upon, will reserve an identical fate at the application of the American laboratory. “Acceptance could be dangerous,” warns Michael Fischer. Today, a company can file a patent application, but the invention must always be associated with men or women who must be explicitly mentioned on the application. And they are paid for it. ”
Director of the AI laboratory at EPFL, Boi Faltings agrees with this, noting that, even if it is not optimal, the current system makes sense: “The patent makes it possible to reward and protect the work of the author of an invention, while immediately revealing its contours, then making it available to everyone after a certain number of years. This approach contributes to widely disseminating scientific knowledge and developing know-how.”
A broader reflection on the status of machines
However, we cannot completely exclude an evolution in a more distant future. “First limited to human beings only, authorship has evolved in the 20th century to be recognized as originating in legal persons, which would have been unthinkable for authors like Apollinaire or Hugo ”, recalls Philippe Schmitt. Aware of the importance of the issue, the European Patent Office launched a vast reflection on the theme. “It emerged that the current system works pretty well, ”sums up his press office in an email. This specifies that the evolution of the situation is closely followed, in concert with other countries such as South Korea, the United States and the China.
“The American Imagine-Engines laboratory seems to have been wrong of interlocutor and debate, concludes Michael Fischer who follows closely the protection of AI. His thinking is part of the much broader issue of rights and duties that one day could be conferred on machines. It’s a political issue. If that were the case, we could then discuss the advisability of attributing inventorship to them.”
A prospect that the expert does not see materialize in the near future, because the integration of artificial intelligence takes more time than expected. This discipline, born in the 1950s, experienced a long winter from the 1980s, before finding new life in the 21st century.