Introduction: The very first legislation in the India relating to patents was Act VI of 1856. The aim of this legislation was to vitalize inventions of new and useful manufactures and to induce inventors to disclose the secret of their inventions. That legislation gradually grew and became the Indian Patent & Design Act 1911, and After Independence, it was felt that the Indian Patents & Designs Act, 1911 was not fulfilling its objective. It was found desirable to enact comprehensive patent law owing to substantial changes in political and economic conditions in the country. Based on the recommendation of a Committee, the 1911 Act was amended in 1950. After the act kept on progressing with relevant developments till the last amendment to the Patents Act 1970 was introduced through the Patents (Amendment) Ordinance, 2004 w.e.f. 1 st January 2005. This Ordinance was later replaced by the Patents (Amendment) Act 2005 (Act 15 Of 2005 ) on 4th April 2005 which was brought into force from 1-1-2005. Post 2005 The technology-driven world has changed dramatically; it is the necessity of time to protect the human intellect and its development. Simultaneously we cannot ignore the dependency of human on AI and development.
New beginning: A new area of innovation, better known as Artificial intelligence and machine learning, has attracted the researchers and the debaters. In all civilizations, Humans are better known for their intellectual superiority. Individuals in every era of civilizations grew with the help of their intellect, and now due to the technological intellect being developed and used, we cannot step ahead without protecting it. Hence certain considerations need to be given to the laws pertaining to Intellectual development through machines. And in the Indian context, this cannot be done without giving attention to IPR laws of India. While tracking down various laws which need to be harmonized in order to facilitate the future of innovations (Specifically by machines), many laws are on verge of becoming outdated, One such example is section 3k of Indian patent act. Let us see why Section 3(k) of Indian Patent Act is one among which needs certain advancement. Before discussing further advancements, let us see what is Section 3 of the Indian Patent Act?
Section 3 of the Indian Patent Act simply states what all cannot be patented as inventions. And 3(k) states that a mathematical or business method or a computer programme per se or algorithms cannot be patented. As no other sections separately talk about AI and the machine learning, this sections becomes the sole to decide, and till now it has been interpreted in such a manner which agrees that inventions done by AI and machine learning cannot be patented in India. Also, to support this practice, one argument which stands in support for this is, a patent can only be registered on the name of a natural/legal person as specified in the Indian Patent Act. Problems arising due to this clause are increasing continuously as optimized machines, and AI are becoming capable of innovating new processes and ideas, and due to the above mentioned and similar clauses the holders or the optimizers are not getting the due patents, and it is leading to disputes and creating a non-encouraging environment. Giving Patents to the things innovated by AI has certain drawbacks too hence it cannot be given too quickly unless proper global frameworks get created but as far as section 3(k) of Indian Patent Act is concerned it needs to be more clear even if it is rejecting the claims to patent an AI innovated concept. It needs to specifically address the terms AI and Machine learning.
If we visualize the recent developments across the world regarding the patent application for Innovations done by Artificial Intelligence, we can clearly see two completely different stances which are equally justified. For example, The US Patent and Trademark Office (USPTO) has ruled that artificial intelligence systems cannot be credited as an inventor in a patent. Where on the other hand under the European Patent Convention (“EPC”), AI inventions are generally patentable as a subgroup of computer-implemented inventions(CII). If we further go through to the guidelines of European Patent conventions, it states that only a legal person can hold a patent also if it is invented by the machine. Hence it marks indications towards the owner of the machine to be a bidder for the patent. Either of the approaches needs to be tailored further to match the AI advancements around the globe.
After going through the arguments made by the advocates favouring the decision to list AI as an inventor, we can comment that they are not arguing that, an AI should own a patent, just that it should be listed as an inventor. This argument is sustainable for the current era, but the researchers are claiming for a much stronger framework for the future. The decision of USPTO to not allow AI to be an inventor and claim patent is appropriate for a short term but cannot be said farsighted. At the same time, EPC’s decision to allow it on the subjective manner and on case to case basis is a better way, still both the sides need upgraded justifications to sustain the future of IPR in regards to AI and Machine learning and the same is applicable for section 3k of Indian Patent Act.
Conclusion: AI-related inventions are booming, shifting from theory to commercial application. It can be clearly assessed that mere rejection to AI innovations from being patented cannot be sustained for a long time, and if continued, it will be seen as a failure of IP rights. Hence Indian Patent Act need to be revisited, even if India wants to maintain the status quo for some time and does not allows AI inventions to get patent still Section 3(K) of Indian Patent Act needs to be revised which can clearly indicate this stand. Otherwise, the tech industries will become messy, and disputes will start hindering the processes. India can think of adding the clause which was earlier dropped in the 2005 Amendment which stated that a computer program’s technical application to industry or a computer program in a combination of hardware is patentable. Either this clause with a revised articulation can be added, or different area similar to CII (In European patent convention) can be determined and case to case basis custom-tailored patents can be granted. It is obvious that AI itself cannot hold the patent but if proper framework is prepared a lawful person can hold patent of the inventions done by AI or by him using AI.