Transparency in the patent system – Artificial intelligence and the disclosure requirement
Alfred Früh · Zurich Open Repository and Archive (University of Zurich) · 2019
The patent system faces fundamental challenges by the recent breakthroughs in Artificial Intelligence (AI). While issues such as patentability and non-obviousness of AI-related inventions - covering both AI-generated output and AI methods as such - have already attracted attention, this chapter analyses whether patent law's disclosure requirement is (also) under attack by AI. According to the disclosure requirement, the inventor has a legal obligation to disclose his or her invention in order to acquire an exclusive right. As the functioning of the disclosure requirement is a common justification of the patent system, the issue at hand is highly relevant: If the disclosure requirement were indeed fundamentally challenged by AI, the patent system would run the risk of losing its legitimacy. This chapter also frames the research question through the lens of transparency. The fact that the disclosure requirement requires patentees to disclose their inventions is crucial for the quality of information in the patent register. Together with the fact that patent registers are open to the public, the disclosure requirement ultimately ensures a certain transparency regarding human inventiveness. With AI entering the picture - which is often scolded for being non-transparent - the question is whether and how this transparency is affected. We argue that the disclosure requirement indeed is challenged by AI, but that the challenges are less grievous than in other areas of patent law. To be more precise: the use of AI may lead to new disclosure deficits, and some AI-related patents may be considered insufficiently disclosed because they lack reproducibility. However, timely anticipation of these risks allows patent law to adapt, mainly because AI is not only a threat but could also remedy imbalances in the disclosure requirement: addressing these issues properly, AI may lead even to more instead of less transparency. The argument will unfold in four steps: We first examine the disclosure requirement in patent law (section 2) and the state of the art regarding AI (section 3). We will then combine these parts in order to address the looming challenges of the disclosure requirement confronted with AI (section 4) Lastly, we will also highlight new opportunities brought about by AI (section 5), before concluding (section 6).