AI-Invented Invention Registration with the Russian Rospatent Agency
The ubiquitous presence of Artificial Intelligence (“AI”) in modern life is in part due to the myriad of capabilities it has. Not only can AI process data, it can also generate creative writing, converse with humans over the phone, and create visual art, amongst a number of other functions.[1] Hospitals use AI algorithms to identify patients most at risk for sepsis,[2] and Google Brain researchers developed a reinforcement learning approach to AI which enables an AI to build its own AI.[3] With the rise of AI significance in research and development, questions of patent law and policy surrounding inventorship become more pressing.[4]
However, there is lack of global consensus in addressing AI-invented inventions.[5] In Russia, the Federal Service for Intellectual Property (known as Rospatent) is the governmental agency with an analogous function to the U.S. Patent and Trademark Office (“USPTO”).[6] The USPTO is the governmental agency in the U.S. Department of Commerce that issues patents.[7] In July 2021, Sberbank registered a product created with AI: a computer program written in C++ and Java named “Artificial Vision” (Искусственное зрение) with registration number 2021661571.[8] This was the first Rospatent registration in Russia created by AI.[9] The state registration document acknowledges that a ruGPT-3 neural network created Artificial Vision, but also lists the Sber AI developers who trained ruGPT-3: Bakshandaeva Darya Dmitrievna, Stepnov Mikhail Igorevich, Salikhov Dmitry Rifovich, Semenova Natalya Aleksandrovna, and Chertok Andrey Viktorovich.[10]
Neural networks are an established technique in AI – they were first proposed in 1944.[11] The name comes from the similarity it has with the human brain.[12] Many neural networks consist of two layers of processing nodes that process data in one direction.[mfnId.[/mfn] The program ruGPT-3 created enables AI to process objects in virtual reality.[13] This is done using artificial eye retinal neurons and image pixel comparisons to make virtual models.[14]
The Russian approach to AI-invented inventions is interesting in context of Russia’s propensity for disregarding intellectual property rights (“IPR”).[15] Russia has remained on the Office of the U.S. Trade Representative’s Special 301 Priority Watch List, a report regarding countries with significant violations of IPR.[16]
In America, the USPTO has categorically determined that AI cannot be the inventor of a patent.[17] This is because the Title 35 of the U.S. Code and Title 37 of the Code of Federal Regulations defines “inventor” and “joint inventor” as natural persons.[18] Similarly, the European Patent Convention requires “an inventor designated in the [patent] application has to be a human being, and not a machine.”[19] There is significant interest in an international cooperative system in protecting intellectual property as facilitated through the Patent Cooperation Treaty and the World Intellectual Property Organization (“WIPO”) (a specialized agency of the United Nations).[20]
WIPO held its first “Conversation” regarding the impact of AI on IP policy in 2019 and has since had second and third sessions regarding the same.[21]However, these issues will not have a global solution any time soon. In the United States, at least, Congress would have to amend the statutory language for an AI-invented invention to have an AI as an inventor. The exponential development of AI will only raise more questions about its impact in patent law and policy.
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