The real problems with patents for AI-related inventions and human rights

• Author: Iga Balos
• Pages: 440-458

440

The real problems with patents

for AI-related inventions and human rights

Iga Bałos1

Andrzej Frycz Modrzewski Krakow University

1. INTRODUCTION

Artificial intelligence (AI) is everywhere. Not only are algorithm-based

solutions applied across industries, but AI is also depicted in Hollywood’s

blockbusters. Filmmakers anthropomorphise AI which combined with people’s

tendency to oversimplify complex issues has created misconceptions about AI

current capabilities. According to experts in AI and robotics, it is highly uncertain

when, or if, fully autonomous Artificial General Intelligence can be achieved.

On the other hand, the number of patents for AI-related inventions is increasing.

Some of them simply facilitate everyday life, while some others may pose a

threat to human rights (HR).

The paper is an overview of the basic implications of AI-related patents for

human rights. The article is organized as follows. At the outset, I present a right to

obtain a patent through the prism of HR. Next, I distinguish two contexts within

which HR applies to AI-related patents. First is the patent protection itself and

its further impact while the second refers to the process of using an AI-related

invention being the subject matter of a given patent. Some conclusions are drawn

1 PhD; Assistant Professor at Andrzej Frycz Modrzewski Krakow University; ibalos@afm.

edu.pl; ORCID: 0000-0001-8606-9719.

The real problems with patents for AI-related inventions and human rights

441

in the final section. For reasons of space, considerations of a general nature and

introductory remarks on AI, types of HR and patents as state granted monopolies

are not addressed in this paper.

2. PATENT RIGHTS AND HUMAN RIGHTS

It has been suggested that “patent protection is the category of intellectual

property rights that has been considered the most problematic in relation to

human rights”2. It is because the patents lawfully prevent other parties from

temporary exercising their own HR. Some patents may restrict access to goods

and services essential for realization of social and cultural HR, especially right

to health, food, scientific research or benefits of science progress. The above

mentioned limitations are justified due to creating incentives for innovation. On

the contrary, it can be argued, that there is no one to be deprived of anything

once the patent is granted since a given invention would not exist without the

inventor’s ingenuity3. Therefore, it is the least controversial to say that some

patents may be socially problematic4.

There is no such HR as a right to obtain a patent5 regardless the subject

matter of the application. It must be distinguished from a right to protection

of moral and material interests of an inventor which shall be classified among

economic, cultural and social rights. For example, according to Art. 27(2) of

Universal Declaration of Human Rights (hereinafter referred to as “UDHR”)

“(2) Everyone has the right to the protection of the moral and material interests

resulting from any scientific, literary or artistic production of which he is the

author.”6 Patent law protects the effects of scientific activity. Nonetheless,

patent protection has been indicated as not being mandatory in order to enable

the inventors an optimal living standard. E.K. Oke indicates that it “can equally

2 Hans Morten HAUGEN, “Patent Rights and Human Rights: Exploring Their Relationships”,

The Journal of World Intellectual Property (2007) Vol. 10, no. 2, p. 97.

3 Robert NOZICK, “Anarchy, State, and Utopia”, New York: Basic Books 1974, p. 182.

4 Aurora PLOMER, Patents, Human Rights and Access to Science, Edward Elgar Publishing

Limited 2010, p. 1.

5 Weny J. GORDON, Current patent laws cannot claim the backing of human rights, Intellectual

Property and Human Rights: A Paradox, F. W. Grosheide (ed.), Edward Elgar Pub 2010, p. 156.

6 United Nations, Universal Declaration on Human Rights, original publication date: 1948

<https://www.un.org/en/universal-declaration-human-rights/> accessed 15 November 2020.