Recent literature on artificial intelligence distinguishes three different forms, namely assisted, augmented and autonomous artificial intelligence.44 The difference between these forms comes from the allocation of decision rights between man and machine. In the assisted artificial intelligence stage, machines execute certain specific tasks, but decision rights remain solely with human beings; in the second stage, augmented artificial intelligence, humans and machines share decision rights and learn from each other; and in the third and final stage, autonomous artificial intelligence, machines ultimately take over all decision rights, either because humans increasingly trust the machines’ abilities to decide, or because decisions have to be taken so quickly or require so many data that humans are simply unable to decide. This tripartite distinction – which in fact is more like a continuum – can
Gave existing toothbrush designs and gave objective data about how effectively each of those toothbrushes cleaned teeth. Solely from this information, the CM discovered what makes one toothbrush better than another at brushing teeth and produced the cross-bristle design on the basis of that discovery.
https://www.wired.co.uk/article/ai-cancer-drugs-berg-pharma-startup - http://www.hoganlovells.com/en/publications/the-skilled-machines-disrupting-drug-design Another early adopter of AI was Framingham, Mass.-based Berg LLC. The company’s chief analytics officer, Slava Akmaev, told BioWorld Insight that right from the start, its founders sought to build a “very different pharmaceutical company,” one in which research and discovery would take their cues almost entirely from data, ideally freed from dependencies on prior hypotheses. “Often times, we don’t know what we don’t know,” he said. That thinking was the genesis for the company’s Interrogative Biology platform, which, instead of hypothesizing the mechanism of a disease and focusing on only a few related compounds, tries to profile the entire disease by analyzing various biofluids and cell models as well as clinical information from electronic medical records. The data are then fed to its Berg artificial intelligence engine, which is designed to infer molecular pathways directly from data that may be specific to a certain disease, cell type, or interaction of multiple cell types. “We try to understand it at a very small, contextual level, where we cannot spend decades trying to decipher these things one gene or protein at a time,” Akmaev said. Among the clearest examples of the platform in action is the way in which it has shaped development of the company’s lead program, BPM-31510 (ubidecarenone). Though the candidate got its start as a potential topical treatment for epidermolysis bullosa, using its Interrogative Biology platform, Akmaev’s team was able to show it also may have significant potential in oncology. A new formulation of the drug is currently being tested in phase II for the treatment of pancreatic tumors. The going has not always been easy, though, Akmaev said. When he joined the company about eight years ago, “in many ways, it was extremely challenging to talk about our approach in the community,” where conservative attitudes to the science of drug discovery minimized the company’s approach, he said. Within the last couple years, however, the company’s reception has improved, he said. It could become even warmer as the Berg team gets closer to launching the first clinical program with roots solely planted in its AI-based system biology approach, a feat Akmaev said will likely be achieved in late 2019 or 2020.
For the first time a painting made entirely using ‘Artificial Intelligence’ was sold at auctioning house Christie’s New York. The painting with the title “Edmond de Belamy, from La Famille de Belamy” was originally estimated at $7,000-$10,000 but ultimately sold for the staggering amount of $432,500 (including fees). Much like a painting of human origin, the painting sold at Christie’s was signed by ‘the artist’ with a core component of the algorithm that created it:“min G max D Ex[log(D(x))]+Ez[log(1-D(G(z))]” So how did this portrait of the imaginary Edmond de Belamy come into existence? It essentially comes down to teaching a computer how to paint. The portrait was made with machine learning algorithms called Generative Adversarial Networks (“GANs”). These algorithms are capable of generating images by mimicking characteristics of images from a training dataset (but are also capable of generating other output such as music and text). The artist Pierre Fautrel of the Paris-based art collective Obvious Art (which includes Hugo Caselles-Dupré and Gauthier Vernier) inserted 15,000 portraits dating from the 14th to the 20th century into the software, enabling it to make portraits itself. This led to a series of eleven unique images portraying the ‘Belamy family’, of which Edmond de Belamy is one.
Cons of not allowing AI inventions May discourage innovators from pursuing AI inventions (which still require humans to create and maintain AI systems), thus stifling tech. progress AI-inventions may be kept as trade secrets (non-disclosure instead of disclosure; risk of a perpetual monopoly): again, risks of stifling innovation Pros of not allowing AI inventions Would prevent a number of risks: Impact on future human innovation since supplanting human intelligence may result in atrophy of human intelligence and obsolescence of the scientific method; risk of monopolies in small fields (with innovation at very quick rates)
But this does not mean that AI will make all patents obsolete… - Human inventors may outsmart AI - Inventors may use standard AI tools in a non-obvious manner - Develop new AI tools that are more powerful than the standard ones
The first point to consider is that it must be obvious to use AI. At present AI is being used by specialist companies. Access to AI is far from becoming standard, let alone part of the average skilled person's common toolkit. Yet even if the use of a particular AI were to become the norm, Actavis v ICOS does not preclude a new or inventive use of that AI – perhaps by putting it towards a new purpose, or pointing it towards a different set of data to the data that it is known to use, such as proprietary compounds which are not state of the art. This alone is interesting because in years to come the Court considering whether or not the use of an AI is routine or not might have to come to a view on which algorithms and/or data was at the heart of the invention derived by the AI.
Author v. Inventor, and the robot
9 May 2019 – Sapientia Hungarian University of Transylvania, Cluj-Napoca
Francesco Banterle - Giovanni Trabucco
Author v. Inventor, and the Robot
Copyright vs patents in relation to AI’s
"computational" creativity. Is any of the two systems
compatible with it?
Disclaimer: the purpose of this presentation is to
compare copyright and patent laws. Apologies for
being quick on certain aspects
What are we talking about?
From an IP perspective it is useful to distinguish:
• Autonomous (= "computational")
What is artificial intelligence?
Oral-B CrossAction (Creativity Machine – Dr. Stephen Thaler)
BPM 31510 (ubidecarenone) – BERG
Edmond de Belamy, from La Famille de Belamy
min G max D
• Is the concept of invention compatible with computational inventions?
• Is the current authorship/ownership regime compatible with
• Can AI be an inventor? If not, does this affect patentability of
European patent law and computational inventions
No definition of invention in EPC or Italian Industrial Property Code (IPC)
"European patents shall be granted for any inventions, in all fields of technology,
provided that they are new, involve an inventive step and are susceptible of
• New and original solution to a technical problem that is suitable for industrial
application (functional definition)
• As long as it meets the mandatory requirements + subject-matter not excluded from
patentability = patentable invention
• Dynamic concept, to adapt to technological development
• In the patentability requirements the «inventor» and its «intellectual» creation do not
• Not anthropocentric view of invention (although hints of "inventor's creativity" in case
law and scholarly approaches in EPO Member States)
An invention shall be considered as involving an inventive step if, having
regard to the state of the art, it is not obvious to a person skilled in the
Person skilled in the art:
1. abstract model that is only aware of the state of the art in the technical field of the
invention (not "medicine", but "oncology", or – if applicable – "paediatric oncology") +
common general knowledge (text books)
2. may be a team, and thus be aware of multiple technical fields ("chemistry" +
3. may know other fields, if neighbouring or even remote (respectively, if common to
know or if prompted to do so)
No human prerequisite, just human parameter (obviousness)
Initial ownership of the invention belongs to the inventor
An application and a patent certificate must name the inventor
No definition of inventor in the EPC or IPC. However, the inventor is
generally framed as a human being.
• Art. 60(2) EPC: "If two or more persons have made an invention independently of each
• Art. 185 IPC: the patent application must include first and last name of the inventor
• Art 62 IPC: the moral right to inventorship may be enforced by the inventor itself and –
after its death – by its spouse, its descendants, its ascendants or, in lack thereof, by
other relatives up to the fourth degree
What happens if the applicant omits or names a wrong inventor?
Art. 81(1) EPC: "The European patent application shall designate the
If the designation of the inventor is absent or deficient and the inventor
does not provide the name within 16 months from the filing/priority date
the application is refused (Art. 60 + 90(5) EPC)
Invalidity is subject to local law. Italy: if the missing/incorrect
designation goes unnoticed, this is not a cause of revocation of the patent
(numerus clausus rule) > inventor is not a substantial requirement
But > procedural issue
• Is copyright subject matter (originality) compatible with computational
• Can AI be an author? If not, does this affect copyright protection of
EU copyright law and computational works
• Art. 1(3) Software Directive, Art. 3(1) Database Directive, Art. 6 Term of Protection
Computer programs, databases and photographs shall be protected if they are original in the sense that
they are the author's own intellectual creation. No other criteria shall be applied to determine their
eligibility for protection.
• Recital 16 of Term of Protection Directive
A photographic work […] is to be considered original if it is the author's own intellectual creation
reflecting his personality.
• Article 2(1) Software Directive - Authorship of computer programs
1. The author of a computer program shall be the natural person or group of natural
persons who has created the program or, where the legislation of the Member State permits, the
legal person designated as the rightholder by that legislation.
[it is a legal fiction - still, an initial human author seems to be necessary]
Originality – In the law
Work protected by copyright
• CJEU – Infopaq decision
Extension the notion of originality as author's own intellectual creation to subject-matter falling within
• CJEU – Football Dataco decision
[T]he notion of the author’s own intellectual creation refers to the criterion of originality. [T]hat criterion of
originality is satisfied when […] its author expresses his creative ability in an original manner by making
free and creative choices […] and thus stamps his ‘personal touch’. By contrast, that criterion is
not satisfied when the setting up of the database is dictated by technical considerations, rules or
constraints which leave no room for creative freedom.
• CJEU – Phil Collins/EMI Electrola decision
The specific subject-matter of copyright and related rights is "to ensure the protection of the moral and
economic rights of their holders"
Originality – In the case law
Work protected by copyright
• Art 1 Term of Protection Directive
The rights of an author of a literary or artistic work within the meaning of Article 2 of the Berne
Convention shall run for the life of the author and for 70 years after his death, irrespective of the
date when the work is lawfully made available to the public.
• Art 6bis Berne Convention
Independently of the author's economic rights […] the author shall have the right to claim authorship of the
work and to object to any distortion, mutilation or other modification of, or other derogatory action in
relation to, the said work, which would be prejudicial to his honor or reputation.
The[se ] rights […] shall, after his death, be maintained, at least until the expiry of the economic rights,
and shall be exercisable by the persons or institutions authorized by the legislation of the country where
protection is claimed.
Originality = creativity + existence of an author (Ramalho 2017-2019)
• Authors and inventors are framed in EU law as humans
• They have moral rights on their works and these rights are passed upon
(often: to their heirs) after their death
• Human authors are part of the requirements for copyright protection
(author's own intellectual creation)
• This is not the case for patents: functional definition (new, inventive,
• The "human" nature of the inventor appears to be less structural
in the patent system than that of the "author" for copyright
• Also computational inventions cannot be protected for procedural reasons
• Does it mean that AI works/inventions should not be protected?
If AI works/inventions (and the relevant investments) cannot be protected
the short term solution is to interpret AI as a super-tool in the creative
• Dominant approach: AI cannot "create" but is – at best – a
sophisticated tool that is used to reach the invention/create the work
• Especially in patent law: humans, not the machine, define the problem to
be solved, set the parameters to solve it, identify the best solution (e.g.
Oral-B CrossAction: selection of designs provided)
• (if necessary): changing the mental act - conception
AI as a tool
• The AI user
• The AI programmer (trainer, provider of data, software developer….)
• The AI owner
• The person that recognizes that the AI's output is a patentable invention
or an original work
• And potentially others… possibly too fragmented? AI is now being
developed by very large research groups
Peripheral natural inventors/authors "behind" the AI
• CJEU (Painer) example on photographs: free and creative choices in
several ways and at various points in its production:
– Preparation phase: the photographer can choose the background, the subject’s pose
and the lighting.
– Execution phase: when taking a portrait photograph, he can choose the framing,
the angle of view and the atmosphere created.
– Selection phase: when selecting the snapshot, the photographer may choose from a
variety of developing techniques the one he wishes to adopt or, where appropriate,
use computer software.
• By making those various choices, the author of a portrait photograph can
stamp the work created with his ‘personal touch’.
• From creation to conceptualisation? (Hugenholtz)
Changing the mental act – Copyright
• The process to reach the invention is generally irrelvant and not to be
• Problem conception at the core: towards problem inventions
• Conception as devising the problem, setting the data and controlling the
But what if AI start creating/inventing autonomously?
Changing the mental act – Patents
• Patent law seems more ready to adapt to autonomous
• Balancing tools: the requirements for protection are based on technical
merits (obviousness). Inventive step in patent would be changed in case
AI role is disclosed
• Not disclosing the role of AI would result in a wrong attribution and not
maximise the goal of patent system against an evolution of the inventive
• Shift from an inventor-based system to an invention-based/investment
protection system (in terms of ownership – works for hire model)
Inventive step – Person skilled in the art
AI as a tool in the invention process
AI may also affect the level of skill of the person skilled in the art.
EPO: "the skilled person has at his disposal the means and the capacity for
routine work and experimentation", which are normal in the field of the
Is the use of AI a "routine" tool in the relevant field?
NO: patent inventive if not obvious
to the skilled person without use of AI
(even if AI has done most of the work)
YES: the skilled person is
"improved" with the AI. No
inventive step if obvious to skilled
person + AI (even if you didn't use
Inventive step – Person skilled in the art
AI as a tool in the invention process
• Yet: very complex to assess the capabilities of "normal" AI tool
• How can patent examiners, patent attorneys and Judges assess this?
– Not disclosed in the application
– Output difficult to predict (and may be different if the same input is fed to the system twice);
– Training data (standard/non standard)
– Examined data set
– Self-learning and improving mechanisms…
• If the invention results from a large number of calculations, or brute force trial-
and-error testing may seem non-obvious, but the result is inevitable?
• Opening to AI creation would mean re-thinking copyright
• Solutions proposed:
– sui generis regime? Drawing parallels with the database producer’s right, the most
suitable rationale for protection of AI generated works would be investment protection.
– Public domain solution with publication/dissemination rights for a limited amount of
– Short term copyright protection with no moral rights
• The right solution to be adopted needs economic justification – need to
understand whether market failure exists: this should be assessed by
• Solution will have to be coordinated with liability for AI actions