Avoid ghost patents in the AI age

The list of fields that can utilize artificial intelligence (AI) technology is limitless and can range from environmental engineering to medical purposes, and from financial services to entertainment. Uses of AI throughout the last few years has been increasing, and the field of patents and trademarks is not immune to such changes. While exponential growth has been seen in the field of AI, it could be argued that it is only now that patent and trademark law is attempting to catch up.

One of the most pressing issues relates to the output of AI generated work. Should a product or an output of an inventive or creative AI process, if it is considered as both novel and inventive, be protected under intellectual property laws? Worldwide, the law at the moment states not, as protection for such outputs is denied under the principle that no human creator exists when AI functions independent of human control. As such, these outputs are generally considered to belong to the public domain.

Such an arrangement may however be changing, with the European Parliament in resolution 2020/2015(INI) of October 2022 stating that technical creations generated by AI technology, given the issues surrounding the automation of the creative process and ownership rights, require protection in intellectual property law in order to give legal certainty. Interestingly and in contrast, a report produced by the European Commission in November 2020 concluded that AI autonomy should not stand in the way of the generation of intellectual property rights to the human involved in the process. Both approaches seek to ensure that so-called “authorless works” or “ghost-patents” do not become the norm, and in the future the UPC may find itself ruling on such issues on behalf of the European institutions.

Go back