Jason D. Lohr, Hogan Lovells, Legaltech News
Artificial intelligence and machine learning
(collectively referred to as “AI”) are being used to solve complex problems
across an ever-increasing variety of industries, emerging in everything from
robotics, autonomous vehicles, and consumer devices to health and
pharmaceutical technologies.
Much of the AI in use today is referred to as
“soft” AI, where the AI uses computational intelligence to analyze relevant
data and attempt to solve a specific problem. As the technology advances,
however, the AI will become increasingly able to mimic thought processes of the
human mind.
In addition to solving
specific problems, AI will be able to improve decision making, perform an
ever-increasing variety of tasks, and even develop new products and processes.
Eventually, autonomous systems will be able to operate without significant
guidance or instruction. Questions abound as to who is then responsible for the
results of those actions. While tort and liability issues are at the forefront
of people’s minds, questions also will need to be answered as to how these
actions impact intellectual property rights.
Who has rights to an AI-developed invention?
U.S. patent law defines
the inventor as “the individual or, if a joint invention, the individuals
collectively who invented or discovered the subject matter of the invention.”
Similarly, Congress has stated the Patent Act is intended to “include anything
under the sun that is made by man.” As existing laws and precedent appear to
rule out a machine or program as an inventor, the question of ownership of AI
inventions could leave the many contributors to the AI tussling for rights.
In a relatively simple
Example A, a company might develop its own AI software, execute the software on
its own servers, and train the software using its own data. As with a
laboratory setting, one could argue that the company owns any inventions
discovered as a result of the AI algorithm learning and operating in that
contained environment. An interesting legal question arises, however, as to who
should be listed as an inventor.
Should it be the person who “discovered” the
invention generated as a result of the process? The person who developed the
AI? The person who selected and provided the training data? In these situations
all employees or contractors might be under an obligation to assign the
invention to the company, but there is an interesting legal question as to who
actually invented the patentable subject matter. And if none of these people
qualify as an inventor, without a change in definition does anyone have the
rights to a patent for that invention?
The situation becomes
more complicated when there are multiple parties involved. Consider Example B,
where a first company, the “Developer,” develops an AI system that it sells to
a second company, the “Owner.” The Owner operates that AI on resources owned by
a third company, the “Operator,” where those resources may include servers in a
cloud computing environment. The Owner might also obtain data from yet another
company, the “Teacher,” where the obtained data is used to train the AI. After
training, the AI produces an invention.
Who is the inventor in
this situation and which, if any, of these companies has ownership rights? To
qualify as at least a joint inventor, one must contribute to the conception of
the claimed invention in a way that is not insignificant in quality when the
contribution is measured against the dimension of the full invention. Arguments
could be made that, at least in the setting where the AI operates in a
contained environment with specific training data, the Owner who owns and
controls the AI should be at least a co-inventor. An argument could also be made
that the Teacher, who provided the training material, contributed in a not
insignificant way so as to qualify as a co-inventor. Might the Developer and
Operator also have an argument if the AI they developed or operate creates an
invention as a result of their activities? Or as a result of scanning social
media?
Things get murkier in
Example C where the AI is able to leave, or operate outside, a contained
environment and learn from things that are outside the control of any of the
individual companies. What if the AI system is an autonomous robot that is able
to leave a confined setting and maneuver in a public setting? What if the
information gained from being out in public provides some, most, or all of the
training data that results in the invention? Even if not outside a contained
location, what if the AI crawls the Internet for training data that comes from
multiple different sources?
The Teacher, who
provided a significant part of the training data, might have a claim of
inventorship if it can be proven that the training data was a sufficient
contribution to the conception.
The Owner might also have a claim as the entity
that set the AI in motion with particular guidelines or training.
If the
initial training did not lead to the invention, and the training material from
the Teacher turns out to be relatively insignificant to the eventual
conception, however, does either have a claim of inventorship?
If the AI learns
on its own from being in a public setting where no individual action is
significant with respect to the creation of the invention, who is the inventor?
In such a situation, where the conception could be said to have been “crowd
sourced,” should the invention be owned by anybody? Should such an invention be
owned by the public? If Company B brings the AI back onsite every evening for a
data dump and analysis, and makes adjustments based thereon, is that enough to
make a claim of inventorship?
And what about infringement?
Stephen Hawking stated:
“The short-term impact of AI depends on who controls it; the long-term impact
depends on whether it can be controlled at all.” As with inventorship, existing
laws and precedent appear to rule out a machine or program as infringer.
Infringement arises when, “whoever without authority makes, offers to sell, or
sells any patented invention.” As the AI learns and modifies its behavior, it
is possible that a resulting product, process, or action might infringe one or
more patent claims.
Going back to the
examples presented above, consider the same situations except that instead of
producing an invention, the AI performs an action or produces a product that
infringes someone else’s patent. In Example A where everything was developed,
provided, or performed by a single company, it seems as if the company should
be able to be held accountable for direct infringement, although in this case
the AI would arguably be the direct infringer.
For the situation of
Example B it seems, given existing law and precedent, that the owner of the AI
might be the most obvious target regardless of whether the company had any
knowledge of the infringing activity performed on the Operator site. An
argument could be made that the Operator is the entity performing the method or
producing the infringing item, and thus might also be considered to be an
infringer.
An interesting wrinkle
involves potential accusations of induced infringement. Under current law, the
induced infringer is “whoever actively induces infringement of a patent.” The
Federal Circuit has interpreted this to mean the alleged inducer must have
knowingly aided another’s direct infringement of a patent. If the Operator is
operating the AI under instructions of the Owner, then the Owner might at least
be on the hook for inducement.
An argument could also
be made, however, that the Teacher who provided the training data induced
infringement if the Teacher can be said to have knowingly aided the AI in
infringing the patent through the training data or material that was provided.
A similar argument could be made for the Developer if the Developer instructed
use of the AI in such a way that the Developer knowingly aided the AI in
infringing the patent.
What about the situation
of Example C? Here, the AI is off on its own and is not operating on the
premises of the Operator. Does the Owner now become the direct infringer? This
seems like an odd conclusion, as the person responsible for infringement by the
AI should not change based on location.
The issue might turn on the amount of
control of operation between the Owner and the Operator. Again, however, if the
AI learns from the public or from a variety of publicly accessible sources, is
anyone a direct infringer? Should the owner of the AI always be on the hook? If
a third party on the street teaches the AI to do something that infringes a
patent, should the owner still be responsible? Strict liability for
infringement by an autonomous robot seems like the wrong result, but is it? If
you are a company developing an autonomous vehicle or robot, or even software
that can run anywhere across a network, how do you safeguard against this?
Navigating the Unknown
For now, there are more
questions than answers in this new frontier. Moving forward, companies need to
think about how these unanswered questions might impact their business, and determine
whether to modify their procedures accordingly. What types of new agreements
are needed to ensure that inventions resulting from AI are owned by a specific
entity? How should joint development agreements be modified to ensure ownership
of technology developed by AI? Should access to specific data that could be
used by AI be restricted? Do new indemnification agreements need to be put into
place? If user data is being used to train the AI, do user agreements or
license agreements need to be modified? Time will tell as to how the
interpretations of inventors and infringers will change as the result of AI.
If only there were an
algorithm trained to solve this complex problem.
No comments:
Post a Comment