Artificial Intelligence And The Evolution Of Patent Law In India

Jaivardhan Goyal, Dr Ram Manohar Lohiya National Law University Lucknow

Of late, advances in Artificial Intelligence (AI) have changed the contours of innovation in dramatically and fundamentally altered ways, largely thereby throwing challenges to patent law, as it is currently forming itself vis-à-vis India. Section 3(k) Indian Patent Act, 1970 all mathematical methods, business methods, algorithms and computer programs "per se" are excluded from the scope of patent protection. Although the statute was designed to prohibit monopoly over abstract ideas and ensure free availability of basic knowledge, it has only recently come to be realized that the extreme interpretation of Section 3(k) is now fundamentally thwarting AI-driven innovations. With algorithms created by AI increasingly powering industrial processes and technological solutions, this exclusion needs reconsideration well in time.

Under the current framework, Section 3(k) denies any such invention a patent simply because it falls within the category of a mere algorithm or mathematical formula, no matter how that algorithm happens to be central to an AI system which solves specific, real-world problems. Many industrial applications of algorithmically generated algorithms have far-reaching uses in healthcare and pharmaceutical manufacturing, for example. In those industries, AI can examine the development of new drugs or optimise lines of production. These algorithms are far from abstract concepts and have tangible, technical applications. However, the blanket exclusion under Section 3(k) means they are denied the legal protection that would otherwise encourage further innovation and development in these critical sectors.

There is an international trend in patent law applicable to AI-related inventions. In any case, at least in the European Union and the United States, patent offices are getting accustomed to the advent of AI-driven technologies. For example, the EPO claimed that algorithms "as such" cannot be patented, but at least the inventions generated by an AI, if they present a technical solution to any problem, may be eligible for protection under patent law. Likewise, it created space in the USPTO for patenting inventions in the area of AI, in the form of concrete industrial applications. Those jurisdictions now appreciate that if AI's role in innovation does not exist within the realm of theoretical algorithms, then it must be understood through its practical, problem-solving capabilities. Its current stance on the situation is rigid, and such resistance to growth may be just enough to make the country fall behind as far as leadership over the technology of AI is concerned.