人工智能生成内容的可专利性及其制度回应

Patentability of AI-Generated Content and Its Institutional Response

机器学习、计算机视觉、智能驾驶等人工智能技术得到日益广泛的应用,特别是近年来ChatGPT、Sora等以认知大模型为主的AI技术的加速迭代,将人类带入人工智能时代,人工智能正成为引领未来的新兴战略性技术。这些新质技术成果在给人类生活带来便捷的同时,也对社会秩序的诸多方面,如社会就业、网络安全、法律伦理等带来较大冲击。在知识产权领域,人工智能生成内容的可专利性及其权属等问题亟待廓清。在大多数国家的既有法律中未有人工智能生成内容相关规定,实践中极易引起相关权属、侵权纠纷,因此需要对现行专利权制度作出调整。从知识产权视角直面人工智能发展带来的冲击,分析人工智能生成内容的可专利性,认为无论是从AI生成内容的专利权客体属性,还是专利技术方案、专利“三性”等角度看,人工智能生成内容均具有可专利性。至于其专利权归属问题,涉及人工智能生成内容的AI研发者、所有者、使用者等多方利益主体,除各方事先或事后有约定外,应根据其实质性贡献认定发明人,并对AI生成内容专利申请的披露制度进行合理调适。

The accelerated iteration of artificial intelligence(AI)technologies such as ChatGPT,Sora,and other AI technologies based on cognitive large model learning has brought mankind into the era of AI.It is well-acknowledged that AI is a strategic technology leading the future;however,it has been having serious impacts on many aspects of social order,such as social employment,network security,and legal ethics.In the field of intellectual property,the patentability of AI-generated content and its ownership need to be clarified urgently.AI-generated content is not explicitly regulated by existing laws in most countries,which is likely to cause related disputes over ownership and infringement,therefore,the current patent system needs to be adjusted.This paper focuses on the topic of AI-generated content,and analyzes its conflict with the current patent system.It argues that AI-generated content is patentable no matter from the perspective of the patent object,patent technology program,or patent"three characteristics".As for the attribution of the patent right,it involves the AI designer,owner,user and other interests in the AI-generated content.In the discussion of the patentee of AI-generated content,the study analyzes the inventor of AI-generated content in combination with the most typical DABUS invention patent application case.Only South Africa has become the first country in the world to recognize that DABUS can be an inventor and grant it a patent.Others,such as the United States,the United Kingdom,Europe,Germany,and South Korea,have successively rejected DABUS applications on the grounds that the inventor should be a natural person,determining that AI does not qualify as an inventor.In response to the urgent problem of whether,how and to what extent AI-generated content should be provided with patent protection,this paper puts forward a five-point proposal.First,the patent ownership of AI-generated content should be clarified.In accordance with the principle of interests balance in patent law,the principles of priority of agreement and fair remuneration are introduced.If there is an agreement between the parties,the agreement shall prevail.If there is no agreement,the principle of employment relationship between the employer and the employee will be utilized to solve the problem of attribution of patent rights.Second,the inventor of AI-generated content should be recognized based on their substantial contribution.Users have made substantial contributions to the AI-generated content,and can be recognized as inventors of artificial intelligence inventions.Third,the disclosure system of patent application for AI-generated content should be reasonably adapted.Add disclosure requirements for AI-generated content in the items provided in the request,and at the same time,provide a restrictive explanation for the patent of AI-generated content invention;make it clear that the disclosure of computer programs and such patents containing algorithmic characters should include algorithmic source code,training methods and training data,so as to enable the patent principle of"disclosure in exchange for protection".Fourth,the patent protection period for AI-generated content should be reasonably shortened.Based on the characteristics of AI technology,such as faster renewal and iteration,higher production efficiency,lower cost,etc.,and according to the level of creativity of AI-generated content and the turnover cycle of technological life,AI-generated content patent protection periods could be 5—10 years,and the invention,utility model,and design patents can be set flexibly within the range of these periods.Fifth,the patent creativity examination standards for AI-generated content should be moderately raised.Considering that AI has the characteristics of high productivity and low cost,a large number of inventions will be generated in a short period of time.It is not enough to use the"three-step method"as the standard for judging creativity,and it is necessary to moderately raise the creativity examination standard.To sum up,the challenge of AI-generated content to the patent system will continue,and it is imperative to adjust the existing laws or formulate some common rules to cope with the challenges brought about by the emergence of a large number of AI-generated content,with shall promote the healthy development of AI technology,and ultimately achieve the harmonious coexistence of AI and human society.