Maria Zamkova, CEO at Fenix Legal, discusses the future of patenting AI in Sweden and the likelihood of AI being named inventor in future patent applications.
Artificial Intelligence (AI), the area of computer science that emphasizes the creation of intelligent machines that work and reacts like humans, has for a long time been an interesting topic for both writers and scientists, with Talos of Crete, and Pygmalion, in the Greek mythology, to Mary Shelley’s Frankenstein (1818) and the first working AI program in 1951 – Ferranti Mark 1 for checkersplaying.
The modern AI is, however, no science fiction, or only for entertainment. Much has changed since Steve Wozniak, one of the founders of Apple, warned of artificial intelligence when he made a presentation at the conference “From Business to Buttons” in Stockholm, Sweden in April 2015, asking “What will happen when a robot will be better than we think, in the same way as other machines have become stronger or quicker than us. Have we ever replaced a machine that has replaced human?”
Maybe Mr. Marcus “Dodde” Wallenberg, a Swedish banker and business manager expressed to the reality better in his letter to his brother Jacob in 1946 (in an attempt to convince him to leave the family’s interests in the railroad industry and focus instead on founding the airline SAS): “To move from the old to what is about to come is the only tradition worth keeping” AI has in fact already been established as an important economic generator. Outside traditional industries, “data mining” has been established as a discipline that with extensive impact on the national economy but also in politics, public administration, opinion formation and on almost every conceivable aspect of society. In the manufacturing industry, product development takes place with a significant element of artificial intelligence. In cultural and creative industries, AI is already used today.
Some examples of Artificial Intelligence as a part of our daily life are online shopping recommendations, effective results of search engines, digital personal assistance, machine translations and online communication, infrastructures both in cities and at your home, medical analyses, self-driving vehicles, food and farming, and – recently – tracking the spread of Covid-19.
Sweden is very active on this topic, and both the Swedish University of Uppsala and the KTH ROYAL INSTITUTE OF TECHNOLOGY1 have courses for Artificial Intelligence where students,
after completing the courses, are promised to be able to “analyze and solve problems involving various forms of search algorithms and develop systems that utilize artificial intelligence” according to the official course syllabus. This also means that the AI industry is growing in Sweden.
Also, Swedish inventors and industry are supported by the government.
In May 2018 the Swedish Ministry of Enterprise and Innovation presented the Government’s AI strategy, called “National approach to artificial intelligence” (Article no: N2018.36). The strategy
document noted that Artificial Intelligence has a big potential to create additional value and efficiency within all kind of industry sectors, and contribute to solve the Swedish society’s grand
challenges.
Further conclusions and recommendations was the Sweden has a big potential in using AI 1 https://www.kth.se/en in industry and the public sector. Several
show that the growth potential will be twice as fast with a massive use of AI, compared to a limited use of AI. The net effects in the economy related to the job dynamics are very uncertain. However, there are no indications that the pace of creating new jobs will be slower, compared to the jobs that will disappear because of AI. A national strategy for AI should be developed.
Most of the policy areas and all relevant authorities should be involved in the process to create the strategy. The goal with a Swedish national AI strategy should be to make Sweden a world leader for development and the use of AI for a sustainable growth and welfare.
Sweden’s most competitive potentials within AI are a mix of innovative use of AI in industry and an innovative society.
As a result, on February 6, 2019, the AI Innovation of Sweden was opened. It is the national center for applied Artificial Intelligence, supported by the Swedish government and the public and private sectors across the country.
The mission is to accelerate the use of AI for the benefit of the Swedish society, competitiveness, and for everyone living in Sweden. AI Innovation of Sweden run projects of national interest in
areas such as information-driven healthcare, AI solutions for the Swedish language, data-driven journalism, and AI to help tackle climate change.
Today, the center has offices in nine Swedish cities, from north to south.
So, the AI technique as such is well developed and used in Sweden. The question remains on how to deal with patent applications.
Some guidelines and further points to think about can be seen in a memorandum published by the Swedish Intellectual Property Office (PRV): ”Artificial intelligence & intellectual property – a thought paper”, published on May 27, 2021.
The memorandum is based on discussions with representatives from Swedish academia and business, and clearly initially states that “Sweden should take a prominent role in AI development”.
PRV states that the development of AI is exponential, but the actors still agree that a certain human impact will be necessary for the foreseeable future. Sooner or later, however, we will reach a turning point where the degree of human intervention becomes so insignificant that traditional intellectual property rights may not apply. The question then is how the legislation needs to be adapted to ensure that there are sustainable incentives for human innovation and entrepreneurship.
Mr. Christian Nilsson Zamel, senior lawyer at the PRV and Swedish delegate to WIPO notes in the memorandum that “It is about large financial interests. As one of the world’s most innovative
countries, Sweden should be involved in guiding the discussion. That is why we think, among other things, that it is important to have an investigation so that Sweden can come to the negotiating table with well-thought-out proposals for an approach”.
Already today, inventions and works of art are created with the help of artificial intelligence (AI). This places new demands on the legislation and Sweden should be involved in pushing the
issue in future international negotiations.
Mr. Zamel further notes that “As long as a physical person is involved and enters something into the AI, our current legislation can work.
Then the person who made the entry could possibly be the inventor or author. But pretty soon there will be inventions and works that are completely independently created by an AI and
then we must be prepared”.
One recent example, outside Sweden, is the Federal Court of Australia’s order of July 30, 2021, Thaler v Commissioner of Patents [2021] FCA 879, where Justice Beach studied the initial
rejection made by the made the Commissioner of Patents, and made the conclusion that an artificial intelligence can be recognized as an inventor in a patent submission. The conclusion is based on the fact that nothing in Australian law says the applicant for a patent must be human: “First, an inventor is an agent noun; an agent can be a person or thing that invents.
Second, so to hold reflects the reality in terms of many otherwise patentable inventions where it cannot sensibly be said that a human is the inventor. Third, nothing in the Act dictates the
contrary conclusion.” Justice Beach therefore sent the applications back to the Australian Commissioner of Patents, with instructions to re-consider the reasons for the rejection. It remains to see the final outcome of the case, but it is at least a note that more of these types of patent applications will come up in the near future.
Or, as Mr. Johan Nordlund, lawyer and digitization expert at the Swedish Intellectual Property Office (PRV) said at a seminar at Uminova Innovation, one of Sweden’s top business incubators, on April 11, 2019: Experts believe that in 2045 we will see technological singularity, which means that artificial intelligence will surpass human intellectuals. “When AI can develop itself then we are in singularity. AI is already better at playing chess and Jeopardy.
The jobs that exist today will change in the future, where AI together with people will give better results. AI offers enormous potential for greater efficiency and new opportunities. If you have the opportunity to adapt, there are great prospects for all occupational groups”. In order to be prepared, the memorandum from the Swedish Intellectual Property Office states, among other things, that it is desirable if:
– The Government’s AI strategy “National approach to artificial intelligence” is supplemented with an intellectual property perspective.
– Sweden takes an active role in issues related to AI and intellectual property law.
– The Government focuses on the interplay between AI / innovation / intellectual property rights in future investigations concerning AI as a growth factor for Sweden, and that
– The government initiates a major interdisciplinary investigation into AI as a competitive advantage in a growth perspective.
The boundaries of where the human effort ends and where the AI-assisted process takes place are likely to become more and more fluid. During a transitional period, such issues can be resolved by the European Court of Justice and the EPO through its authoritative interpretation of the relevant regulations, but it is far from excluded that a review of the legislation needs to be made at national, regional and international level.
