人工智能衍生发明与专利法的前沿问题研究

Research on the Frontier Issues of Artificial Intelligence Derived Inventions and Patent Law

从人脸、语音识别到自动驾驶汽车,人工智能已经跳脱科幻电影的虚构,逐渐走入并且遍布人们的生活。虽然就目前已知的技术而言,人工智能尚未具备思考能力,但是由于科学家不断突破限制,人工智能不仅成为生活上的辅助,协助人类进行研究发明,甚至能够独立完成发明。为了鼓励创作与发明,我国制定了知识产权相关法律,如专利法、商标法及著作权法。而传统知识产权保护客体均为人类精神层面的创作作品,因而法律意义上知识产权的保护对象即权利归属主体,仅限于自然人、单位或者其他组织(法人)。随着人工智能创造智力成果的能力越来越接近人类,其将来有可能自行创作甚至独立思考,当其成为真正有贡献的发明人时,现有的知识产权相关法律制度将会面临包含权利主体、专利要件等法律构成要件的适用困境。鉴于此,将研究讨论范围限制在人工智能衍生发明与专利法领域,先从技术角度剖析介绍人工智能的内涵与发展,再从专利法的立法目的切入,同时综合各国规范见解与近期发布的相关审查指南分析其发明适格性,提出人工智能衍生发明权利归属认定的可能方案与建议,最后探讨专利构成要件判断及其对相关产业造成的利弊影响,以期为我国人工智能时代立法研究提供参考。

The emergence of deep learning technology has opened a new milestone in the development of artificial intelligence,and we see a new world in which machines and humans coexist.The rapid development of artificial intelligence technology makes human enjoy progress,but it also brings a variety of worries.People are deeply threatened that robots will gradually take over their work,or even control their world.From faces and speech recognition to self-driving cars,artificial intelligence has jumped out of the fiction of science fiction movies and gradually entered and pervaded our lives.Although currently known technology,artificial intelligence has not yet had the ability to think,but scientists are constantly hoping to break through the limitations,so that artificial intelligence can not only become an aid to life,assist human research and invention,or even complete the invention by artificial intelligence independently.This breakthrough will have a strong impact on the current legal norms,including the attribution of civil tort liability and criminal liability(such as damages caused by self-driving cars)and intellectual property law related issues such as patent and copyright(such as the identification of inventors and creators).To encourage creation and invention,China has enacted laws related to intellectual property such as Patent Law,Trademark Law and Copyright Law.Traditionally,the object of intellectual property protection is the creation of human spirit.Therefore,in the legal sense,the object of intellectual property protection is the subject of ownership,which is limited to natural persons,units or other organizations.As the ability of artificial intelligence to create intellectual achievements is closer to that of human beings,artificial intelligence starts to create by itself or even think independently,and become a truly contributive inventor,the existing legal system of intellectual property will be confronted with the dilemma of the application of legal elements including the subject of rights and patent requirements.Because of this,this article will narrow the research scope into the field of artificial intelligence derived invention and patent law,proposing to analyze and introduce the connotation and development of artificial intelligence from the technical perspective,and analyze the invention eligibility based on the normative opinions of the United States,Europe and Asia and relevant review guidelines recently issued from the legislative purpose of Patent Law.This paper divides artificial intelligence derived invention into three types:human use artificial intelligence as tools,human and artificial intelligence work together in the intermediate stage and artificial intelligence create independently in the late phase,respectively discussing how to identify the patent right and the impact on the existing legal system,putting forward possible schemes and suggestions for identifying the right of artificial intelligence derived invention,and then discussing the judgment of patent constitution and the advantages and disadvantages of patent on related industries,in order to provide a reference for China's legislative research in the era of artificial intelligence.