| Scientific and technological progress promote institutional change,and institutions encourage technological innovation.Advances in science and technology have been driving the development of the patent system.Every technological change has had a profound impact on patent law,giving birth to new objects of protection and exclusive rights.In the era of artificial intelligence,artificial intelligence technology has gradually changed from an absolute tool to an entity with innovative capabilities,and has gradually participated in invention and creation;artificial intelligence technology with machine learning as its core has changed the ability of human beings to understand and change nature,and also provides a new field for humans Innovation,substantially changes the chain of innovation,and poses serious challenges to the object subject and licensing conditions of the existing patent system.Consequently,exploring how the existing patent system embraces technology,and making corresponding adjustments and adjustments,constructing a patent examination and institutional framework for artificial intelligence technology in line with national conditions,and promoting China's artificial intelligence Technology and its industrial development are of great significance.Artificial intelligence related inventions can be divided into three categories:(1)new inventions involving artificial intelligence core technology itself;(2)new inventions incorporating artificial intelligence technology;and(3)new inventions created with the help of artificial intelligence technology.Whether the new invention involving artificial intelligence itself and the new invention integrated with artificial intelligence technology can be included in the scope of patent object protection,and the creation of new invention with the help of artificial intelligence technology involves the qualitative change of the innovation process,mainly for patents.The "three-sex" judgment in the substantive conditions of authorization has an impact.Therefore,this paper mainly discusses the following issues:First,the issue of eligibility for artificial intelligence-related invention patents.The artificial intelligence invention wants to obtain the protection of the patent law and must comply with the requirements of the patent law to protect the scope of the object.Articles 2,5,and 25 of the Patent Law of China to define the scope of patent protection.The technical solution does not change due to the participation of artificial intelligence.Therefore,whether the artificial intelligence invention belongs to the violation of law and public morality listed in Article 5 of the Patent Law can be judged according to the existing rules.In contrast,the challenge of artificial intelligence inventions facing Articles 2 and 25 of the Patent Law is even more serious.Article 2 of the Patent Law requires that the object to be patent protected is a "technical solution".The artificial intelligence invention relies on "algorithm+big data".If it is only blindly pursuing the free combination of parameters to output the "technical solution",it is difficult to call it a "technical solution" in the sense of patent law.Therefore,it is necessary to examine whether the artificial intelligence invention belongs to the "technical plan" from the perspectives of "technical problems,technical means,and technical effects".Because artificial intelligence inventions are mostly computer programs or algorithms,it is most likely to be blamed on "rules and methods of intellectual activity" in Article 25 of the Patent Law.However,the computer program or algorithm is independent of the human brain,the specific method steps of running the computer,not the abstract thinking rules,which act on the computer device,change the physical state of the computer,such as electrons and electromagnetics,and finally display the data changes,in line with the "A requirement for "material state change" to control or process an external or internal object of a computer.Therefore,it is appropriate to take it as the scope of patent object.Second,the impact and reconstruction of artificial intelligence on the "three-sex"judgment standard of patents.This involves not only the judgment of patent practicability,novelty and creativity,but also the disclosure and scope of the prior art as its premise.The practical challenges to patent licensing for artificial intelligence inventions are mainly reflected in:deep learning and its unpredictable output,affecting the requirements of "reproducibility" in practical judgment standards;training data and its scale are not the realization of "positive effect" by saturation.In order to ensure that the patent authorization standard can balance the interests of all parties in the case of a reduction in the cost of the invention,in terms of practicality,the reproducibility only requires that those skilled in the art can reproduce the technology according to the description of the patent specification,so the depth The unpredictability of learning does not affect the reproducibility of technical solutions;instead,the "usefulness" standard should replace the"industrial application" standard.The novelty effect of artificial intelligence technology on patent licensing is as follows:the automatic generation of text technology and artificial intelligence retrieval technology will challenge the disclosure of the prior art and the scope of the prior art,thereby affecting the judgment of novelty.In theory,the state of the art is not changed by the advent of artificial intelligence.In reality,due to the difference in human and artificial intelligence retrieval capabilities and the novelty of artificial intelligence inventions measured by human retrieval ability,artificial intelligence inventions easily meet the current novelty requirements and cause dissatisfaction of human inventors.To this end,in the novelty review,the absolute novelty requirements can be adhered to,and artificial intelligence retrieval comparison uniforms the novelty review criteria.The challenge of creative invention to creative creativity:due to the uneven development level of artificial intelligence,it is difficult to determine the general technical level of ordinary people in the field;big data mining technology blurs the boundaries of"prior art field",to creative Judgment brings uncertainty.In the reconstruction of the system of creative judgment standards,it should be adhered to that creativity is not only a baseline for dividing the innovation level,but also a yardstick for judging the average social profit and excess profits.To this end,we should respond to the above problems from the perspective of economics,avoid artificial intelligence owners use artificial intelligence to invent super-monopoly,promote artificial intelligence to create an open environment,and use artificial intelligence technology as an essential element to determine the general technical level of ordinary people in the field.And break the boundaries of the "prior art field" in a timely manner,and expand the existing technology from a single field in a multi-dimensional space.At the same time,appropriately and prudently enhance the criteria of creative judgment. |
PDF Full Text Request