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Does AI qualify as an ‘Inventor’ based the statute in Indian Patents Act, 1970?

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Human Intelligence is the ability of a human brain to recognize and interpret information and enhance the existing knowledge based on its understanding capabilities. In a pursuit to create a working replica of the human brain, the scientists came up with ‘Artificial Intelligence’ on electronic devices.

Artificial Intelligence (AI) is used to automate machines to perform tasks that usually require human intervention. The domain of AI includes finding new utilities in terms of visual perception, translation, speech recognition, decision – making based on available database, etc.,

When it comes to intelligence, we have certain laws that protects an individual’s tangible ideas as Intellectual Property. In India, we have the Indian Patents Act, 1970, that lays the rules and regulations for providing Intellectual property rights for the inventors of new and innovative inventions.

With the advancements in the technology, the AI is now capable of rendering new ideas that are tangible and worthy of being patentable. However, the question is whether our current law recognizes AI as an inventor and what are the pros and cons of recognizing an AI as an inventor. We will be addressing the same from the Indian Patent Law perspective.

Currently, Indian Patents Act does not specifically define the term ‘inventor’. Therefore, it becomes even more necessary to understand the Indian Patent Act as a whole, to apprehend the objective of the legislator and comprehend the term ‘inventor’.

In a recent application numbered 202017019068, the Controller has objected to recognizing AI as an inventor citing the provisions laid in Section 2 and Section 6 of The Indian Patents Act, 1970 (hereinafter referred to as the ‘Act”). The two sections elaborate on the criteria for recognizing an inventor and the ‘person’ who can apply for a patent in the Indian jurisdiction. In particular, Section 6 provides information about who can apply for a patent. Section 2(1)(s) defines those who can be referred to as a ‘Person’ while Section 2(1)(y) defines who is not a true and first inventor. The definitions of these relevant sections as specified in the Act are as follows:

Section 6(1)(a): ‘An application for a patent for an invention can be made by any ‘Person’ claiming to be the first and true inventor of the invention.’

Section 2(1)(y):  "true and first inventor" does not include either the first importer of an invention into India, or a person to whom an invention is first communicated from outside India.

Section 2(1)(s): ‘In this Act, unless the context otherwise requires, — “person” includes the Government’.

It is important to note that the ‘Person’ must claim to be the first and true inventor of the invention. Unlike copyrights, the ‘Person’ does not naturally become the first and true inventor of the invention until they claim to be so.

It may be noted that in accordance with the Section 2(1) (s) the reference to ‘Person’ in the Act may be either a natural person or the Government. However, it is interesting to note that the term ‘person’ does not just consist of any natural person and/or Government but it includes the reference to Government along with other entities who can be the true and first inventor of the invention. This means that anybody or anything that is the first and true inventor of the invention can be the ‘person’ eligible to claim to be the inventor of the invention for which a patent is being claimed.

Although Section 2(1)(y) mentions about who cannot be an inventor, an ambiguity arises with respect to who can be called the true and first inventor for the invention when an AI is the true and first inventor of the invention. Therefore, to understand who exactly qualifies to be an inventor in India, we need to look into certain Indian case law judgements in combination with the Act.

 One of the Indian case laws: V.B. Mohammed Ibrahim v. Alfred Schafranek, AIR 1960 Mysore 173 sets precedence with regard to inventorship. In accordance, it was held that a financing partner could not be treated as an inventor, nor can a corporation be the sole applicant claiming itself as the inventor. This judgment emphasizes on the fact that mostly a natural person (who is neither a financing partner nor a corporation) who genuinely contributes their skill or technical knowledge towards construing the invention, qualify to be claim the inventorship.

However, it might be argued that an AI may also contribute its skill or technical knowledge for an invention to qualify as an inventor. To address the same, we need to look into another Indian case law: Som Prakash Rekhi vs Union Of India & Anr on 13 November 1980 AIR 1981 SC 212, wherein the Hon’ble Supreme Court of India passed a judgement regarding who can qualify as a legal ‘person’ according to Indian judicature. Accordingly, the judgment held that a jurisdictional person is the one to whom the Law attributes ‘personality’. When we refer to a juristic personality, we refer to a legal entity who have the rights to sue or who can be sued by another entity. Inherently, an AI does not have the capability to use the numerous rights, nor can it perform the required duties of any juristic personality independently.

Further, we need to look into the legislative intent behind the Act as elaborated in the Ayyangar Committee Report of 1959. Here the intentions of the various statutes have been explained in detail. The report addresses the intent of mentioning an inventor for a particular patent as a matter of right of the inventor. The report emphasizes that any person has a moral right to be named as an inventor even though he might not have all the legal rights over the invention. The report said that the principle behind broaching the inventor for an invention was to facilitate the inventors to augment their economic worth for which they are justifiably entitled, even though they might have given away their proprietary rights by way of contracts or agreements. However, the AI can neither savor the benefits envisioned in the legislative intent nor can it be entitled to moral rights under prevailing laws in India.

Therefore, the overall study of the Act along with the above-mentioned case laws and the report on legislative intent, clearly clarifies that currently an AI cannot be recognized as an inventor in India. However, the AI related inventions are currently being recognized in India based on the fact that the AI is used as tool to assist the inventor.

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