Between 2013 and 2016, the number of Artificial Intelligence (AI) related patent applications in the life sciences and medical sciences grew by about 40%*, and, with continuing advances in technology, has likely increased substantially since 2016. Although this finding may not come as a surprise to life sciences practitioners, this melding of technologies has prompted important, and in some cases surprising, questions about inventorship, enablement, and patentability.
On December 13, 2019, the WIPO Secretariat published a draft issues paper on intellectual property policy and AI (available here), which provides a list of questions and issues relating to patent policy as a consequence of the widespread use of AI. The paper sets forth a draft list of issues that is divided into five areas: (a) Patents; (b) Copyright; (c) Data; (d) Designs; (e) Technology Gap and Capacity Building; and (f) Accountability for IP Administrative Decisions. Within Patents, representative questions include:
- Should the law permit or require that the AI application be named as the inventor when an invention is autonomously generated by the AI or should it require that a human being be named as the inventor?
- Should the law exclude from patent eligibility inventions that are autonomously generated by an AI application?
- Should specific provisions be introduced for inventions assisted by AI or should such inventions be treated in the same way as other computer-assisted inventions?
- What implications will having an AI replace a person skilled in the art have on the determination of the prior art base?
- Should the human expertise used to select data and to train the algorithm be required to be disclosed?
Comments are being accepted at firstname.lastname@example.org from all interested parties through February 14, 2020. Following the close of the comment period, the WIPO Secretariat will publish a revised Issues Paper that will form the basis of the Second Session of the WIPO Conversation on IP and AI, to be held in May 2020.
The questions of the WIPO draft paper may seem reminiscent of those posed in the August and October Notices published by the USPTO, which requested feedback from the public on issues relating to the intersection of artificial intelligence (AI) and IP policy. Given the rise in the number of AI-related patent applications in the life sciences, the USPTO Notices provided an important opportunity for the life sciences community to voice its unique considerations when handling AI-related life sciences inventions.
With the publication of the draft issues paper by the WIPO Secretariat, the life sciences community is now being offered an opportunity to have its opinions heard on the global stage. Input from the life sciences sector at the global level will undoubtedly set the tone for patenting AI-related life sciences inventions across jurisdictions.
*WIPO Technology Trends 2019: Artificial Intelligence, https://www.wipo.int/tech_trends/en/artificial_intelligence/