‘인공지능 및 지식재산권 정책에 대한 대중의 견해(Public Views on Artificial Intelligence and Intellectual Property Policy)’ 보고서는 미국 특허청(USPTO)이 특허 및 지재권에 대한 AI 관련 법·제도적 사항에 대한 전문가와 이해관계자 의견을 수렴(‘19.8~’20.1)해 정리한 보고서이다.
외국 특허사무소, 변호사협회, 무역협회, 학계, 로펌 등은 물론 전자, 소프트웨어, 자동차, 의료 및 제약 산업의 다양한 전문가로부터 약 200개의 의견을 받았다.
발행: 미국 특허청(USPTO)
[그림] ‘인공지능 및 지식재산권 정책에 대한 대중의 견해’ 보고서 표지
• Many comments addressed the fact that AI has no universally recognized definition. Due to the wide-ranging definitions of the term, often comments urged caution with respect to specific IP policymaking in relation to AI.
• The majority of public commenters, while not offering definitions of AI, agreed that the current state of the art is limited to “narrow” AI. Narrow AI systems are those that perform individual tasks in well-defined domains (e.g., image recognition, translation, etc.). The majority viewed the concept of artificial general intelligence (AGI)—intelligence akin to that possessed by humankind and beyond—as merely a theoretical possibility that could arise in a distant future.
• Based on the majority view that AGI has not yet arrived, the majority of comments suggested that current AI could neither invent nor author without human intervention. The comments suggested that human beings remain integral to the Category of Responses to Oct. 30, 2019 RFC (other IP) operation of AI, and this is an important consideration in evaluating whether IP law needs modification in view of the current state of AI technology.
• Across all IP topics, a majority of public commenters expressed a general sense that the existing U.S. intellectual property laws are calibrated correctly to address the evolution of AI. However, commenters appear split as to whether any new classes of IP rights would be beneficial to ensure a more robust IP system.
• A majority of commenters agreed that AI is viewed best as a subset of computer-implemented inventions. Therefore, this majority felt that current USPTO guidance, especially on patent subject matter eligibility and disclosure of computer-implemented inventions, is equipped to handle advances in AI. However, some commenters stressed that it may be difficult to enable (i.e., teach the public to make and use) certain AI inventions, as required by 35 U.S.C. § 112(a), and offered the topic for further exploration by the USPTO.
• Most public commenters agreed that the growing ubiquity of AI would affect how the USPTO and courts would assess the legal hypothetical standard of a “person having ordinary skill in the art,” this standard being critical to the determination of whether a patent right should issue.
• While no majority coalesced around AI’s impact on prior art (i.e., the body of knowledge known at the time a patent application is filed), a number of issues were referred to the USPTO for further consideration, including that AI may generate a proliferation of prior art amounting to a never before seen volume and the ensuing difficulty in finding relevant prior art in view of the increased volume.
Other IP Themes
• Again, while a majority of commenters stated that current IP laws are calibrated correctly in the copyright, trademarks, trade secrets, and data fields, many agreed that existing commercial law principles might adequately fill any gaps left by IP law in the wake of advances in AI (e.g., contract law).
• Specifically on trademarks, most commenters agreed that AI would improve efficiency of examination of trademark applications. Although this sentiment was also generally shared in regard to patent examination.
• Many comments expressed that the use of copyrighted material to “train” AI may violate the reproduction right of a copyright owner under 17 U.S.C. §106(1), and that this use may or may not be a non-infringing fair use.
•Most commenters found that existing fair use law does not require modification, asfair use is a flexible doctrine and is capable of adapting to the use of copyrightedworks in the context of AI.
•The topics of trade secrets and data issues generated an expansive range ofcomments, touching on issues of bias, transparency, privacy, and debates overwhether advances in AI warrant a sui generis IP system for data rights.
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