#patents #intellectualproperty #innovation #incentivizepatents #ipscouting #patentscouting #ipdiscovery #emergingtechnology #aigeneratedinventions #patentability
Introduction
Recent Developments in biotechnology and artificial intelligence have placed conventional patent frameworks to the test, requiring legislators, patent offices, and courts in India as well as around the globe to reevaluate and reframe how they approach the issue.
Moreover, as rapid advancement of modern technology has drastically altered several sectors, presenting previously unseen complexities into the field of intellectual property law. One of the most controversial and deliberated issues in this field is the ability for patenting of living organisms and AI-generated inventions.
This article delves into the most recent challenges and debates surrounding the patentability of these cutting-edge innovations, examining how current legal standards are being adapted or rejected in the face of technological progress.
Can Living Organisms be Patented?
A life form is a being that is alive, such as a plant, animal, virus, or human. This raises the question: can living beings be patented?
Despite initiatives by the Indian Patent Office to address the complexities surrounding the patenting of living forms, the topic of life form patenting in India has long been confusing, and stakeholders are still seeking clarification regarding the same.
To elucidate, the Indian government had initially opposed the granting patents to life forms for decades, as made evident by its demand for a review of Article 27.3 of TRIPS as well its support for the 1999 proposal to prohibit patents on life, including microbiological processes.
However, these proposals of the Indian government was not supported by a majority of the members and since TRIPS requires member countries to allow patents on all technologies and microorganisms, the Patents Act of 1970 was amended between 1999 and 2005, most notably in 2002, to allow the patenting of microorganisms, opening up new avenues for obtaining patent rights in the field of living organisms.
Conditions to Patent a Living Organism in India
In order to patent a living form in India, the proposed invention must meet certain requirements. For instance, the Act does not grant patents for the discovery of "any living thing or non-living substance occurring in nature." Therefore, the proposed invention must involve human intervention.
A landmark judgment by the Calcutta High Court in Dimminaco A G vs. Controller of Patent Designs & Ors sheds light on these requirements. In this case, a Swiss company namely Dimminaco A G, was denied a process patent for a live vaccine for “Bursitis” as the finished product contained a living organism. The Controller of Patents herein was of the opinion that since it could be classified as an invention under Section 2(1)(j) it was disqualified from being patent protected. However, the Court applied the “Vendibility Test” and concurred with the plaintiffs that since the process produced a new, useful, and vendible item, granting the patent for the process would be not barred under the provision of the Indian Patent Act.
Legal Challenges Surrounding the Patentability of Living Organisms in India
The Patents Act 1970 outlines specific exclusions from patentability for biotech patents. Sections 3(b), (c), (d), (e), (i), (j), and (p) outline specific exclusions from patentability.
Section 3(b) prohibits patent protection if the proposed invention leads to commercial exploitation, violates public order or morals or significantly harms humans, animals, or the environment. The provision also stipulates that findings of naturally occurring compounds are not patentable, as only biological materials obtained through extensive human intervention are patentable.
Section 3(d) restricts patenting changes to existing substances unless they result in a novel form with improved efficacy, though the definition of improved efficacy remains unclear, particularly in biotech.
Section 3(e) excludes patents for combination vaccines or drugs that are merely mixed without evidence of synergy.
Section 3(i) precludes procedures for diagnosing or treating people or animals, as new standards.
Section 3(p) provides restrictions on innovations that are already known or combine known qualities.
Critical Comments on the Patentability of Living Organisms
Biotech companies invest heavily in R&D to create new, improved microorganisms. Denying patents for these microorganisms, which were developed after extensive research and significant investment, is demoralising for businesses. Genetic engineering and biotechnology are critical to a country's development. Recognizing this, developed nations such as the United States, Japan, and Europe have enacted legislation to facilitate the patenting of life forms. While the Indian government has made changes to address these concerns, further research is needed to resolve the ambiguities surrounding the patentability of living organisms.
What is an AI-Generated Invention?
In the year 2019, WIPO revealed that two international patent filings were announced for "AI-generated inventions," wherein inventions were created autonomously by AI under circumstances wherein no natural person qualified as an inventor.
In these filings the AI software itself was listed as the inventor and the AI's owner as the patent applicant and prospective owner of any issued patents. Surprisingly, the European Patent Office (EPO) and United Kingdom Intellectual Property Office (UKIPO) after evaluating these applications, found that these AI-generated patents met the patentability requirements to all extents possible.
Nevertheless, currently there is no law or legal precedent on AI-generated inventions, this is because most jurisdictions require natural person to be listed as an inventor during the patent application process, as it protects the rights of so called human inventors despite the ground-reality being that most inventors do not necessarily own their own patents, as businesses as more often than not accorded ownership rights. For instance, in most countries, th title of ownership of a patent invented by an employee passes on to the employer if an invention is created within the scope of employment.
Patenting of AI - Generated Inventions: Nuances, Challenges and Debates
Patent protection for AI-generated works is essential to incentivize innovation and promote disclosure of information. This is since it also helps in commercializing socially valuable processes and products. Nevertheless, listing AI as an inventor would arguably threaten the rights of human inventors. This is because allowing AI-generated patenting would put the work of someone who merely asks an AI to solve a problem on an equal footing with someone who is legitimately inventing something new.
Moreover, while since under the current legal regime, AI systems lack both legal and moral rights, listing AI as an inventor would hamper the moral rights of traditional human inventors and as well as the integrity of the patent system.
However at its very core, patenting of AI generated inventions without human intervention is a real possibility as software programs can instruct AI systems to perform actions, make decisions, and determine outputs based on pre-defined commands and when such commands are combined, the software can independently provide outputs of data.
Hence, the real challenge lies in how legislators examine and validate patent applications for such inventions, in manner that keeps up with the times all the while ensuring they meet the basic principles of natural justice, law and order, ethics and most importantly the legal requirements of novelty, inventive step, and industrial application.
The Takeaway
In conclusion, the patentability of emerging technologies like living organisms and AI-generated inventions remain a perplexing issue which warrants further investigation. In fact, it is imperative that the current legal regime evolves to address the various challenges posed by these technologies in manner which balances the need to incentivize innovation with ethical considerations and practical implications.
Reach Out for Assistance !
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The debate over whether AI-generated inventions can be patented is based on defining AI's role in the creative process. Patenti simplifies this by ensuring that all contributions, whether human or AI-assisted, are meticulously documented, allowing for a clear determination of inventorship.
This clarity helps navigate the legal challenges and debates surrounding the patentability of these cutting-edge innovations, ensuring that they are protected and can be effectively brought to market.
To know more, reach out to our experts today!
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