| With the rapid development of artificial intelligence,technological progress will inevitably bring about changes in patent law.Technology development and patent law are basically in dynamic balance.The application of artificial intelligence in many fields has brought many challenges to the existing patent system in China.It is urgent to respond to it reasonably at the level of patent law.The development of AI originated in 1956,and 2017 is the beginning year of the third wave of AI.The core of AI lies in machine learning technology,which improves self-algorithm by training data,extracting features and combining abstractions,summarizing data and drawing experience.For example,Amazon’s Amazon Go is the core technology of AI,machine learning,a typical application in new retail.The challenges to the patent system from the technical schemes generated by AI are embodied in the three criteria of patent authorization,the dilemma of patent examination practice,the identification of the legal subject status of AI and the ownership of patent rights.The technical scheme of AI generation meets bottlenecks in judging the novelty of patent authorization,such as: how to accurately judge the existing technology field,how to define the subject "ordinary technicians in this field" in the criterion of creative judgment,and how to embody the requirements of practicability in the era of AI in the existing patent legal system;how to generate AI in the practice of patent review.The complexity of cases will also increase the burden of examiners;whether artificial intelligence should be given a certain legal subject status;if some of the technical schemes generated by artificial intelligence meet the patent licensing standards,the ownership of patent rights needs to be clarified.For the novelty dilemma,it is a choice for inventors to search and identify the technical field ahead of time and use AI to screen the complicated patent application documents;for the creative bottleneck,the introduction of "general AI concept" as a reference;and the way out of practicability requires the joint application of technology and law.Whether we can consider giving AI a certain legal subject status,that is,in the process of invention and creation with AI as the dominant human being as the assistant,the protection model of job-based invention applies analogy to regard AI asan employee and the person who provides material and technical conditions as an employer;in addition,the ownership of patents for the technical schemes generated by AI can be obtained.Question: Article 6 of the Patent Law applies by analogy to determine the ownership by agreement among AI data providers,algorithm writers and test and debugging personnel,while in the absence of agreement among AI workers,the patent right is attributed to the person who provides material and technical conditions for AI generation technology solutions. |
