Law Reform Task Two – Patent Law

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1 Law Reform Task Two – Patent Law Name Instructor’s name Course title Institution’s name Date

2 Law Reform Task Two – Patent Law Role within Patent Law The Inventiveness Requirement is a fundamental component of patent law that governs the complex process by which innovators obtain exclusive rights to their inventions 1 . This requirement, which is at the centre of the patent system, acts as a watchful gatekeeper, carefully monitoring the terrain to guarantee that only those inventions with a high level of creativity and notable innovations obtain the sought-after exclusivity linked with a patent 2 . The Inventiveness Requirement is more than just a procedural step; it is a cornerstone of many different patent regimes, and it is a crucial and intricate factor in determining whether a patent application is eligible 3 . Its importance stems from its ability to serve as an astute barometer, directing the distribution of exclusive rights in the direction of discoveries that go beyond the plain and represent true innovation. Despite having its roots in legal necessity, the Inventiveness Requirement serves as a dynamic force that drives innovation inside the patent ecosystem, going beyond its regulatory role. It has more power than a traditional gatekeeper since it actively pushes innovators to explore uncharted knowledge domains 4 . By doing this, it not only prevents patents for small improvements from being issued but also influences the larger creative environment surrounding patentable discoveries 5 . When navigating the patent procedure, inventors are faced with the requirement to exhibit a level of inventiveness that exceeds what would be evident to an individual with specialized knowledge in the relevant subject. This necessity 1 Buckingham, L., & Williams, M. (2023). I, robot: Is IP law ready for the age of AI?: ('Thaler'and other provocations to our existing systems). AUSTRALIAN INTELLECTUAL PROPERTY JOURNAL , 33 (3), 140-162. 2 Mills, O. (2016). Biotechnological inventions: moral restraints and patent law . Routledge. 3 Hashemi, M. (2022). Inventing the Right Drug: Artificial Intelligence May Just be the Cure for an Antiquated Patent System. J. Intell. Prop. L. , 30 , 169. 4 Lim, D. (2018). AI & IP: innovation & creativity in an age of accelerated change. Akron L. Rev. , 52 , 813. 5 Mills, O. (2016). Biotechnological inventions: moral restraints and patent law . Routledge.

3 forces inventors to think creatively, stretching the bounds of accepted knowledge and upending accepted conventions. Pressing Challenge Important questions regarding the recognition of artificial intelligence (AI) as inventors in Australian patent law are raised by Stephen Thaler's arguments during the hearing. He claimed that the Patents Act in Australia does not substantively require a human inventor but emphasizes that the inventor must be the "actual deviser" of the invention. If acknowledged, this viewpoint questions established beliefs and might lead to a reconsideration of the nation's definition of an innovator 6 . The way the court interprets the Patents Act in this particular case could have an effect on the evaluation and granting of patents for AI-generated inventions in Australia, and it could also have an impact on international talks about harmonizing patent laws to account for AI's growing role in innovation. Additionally, one major issue at hand concerns the vital need to maintain an equitable and competitive market under the unrelenting onslaught of technological advancement. This problem is particularly noticeable in industries that are always changing, like biotechnology and software, where small changes in technology often lead to larger ones. The imminent risk of over-patenting is the reason why government action is so urgent, especially in light of these small advancements. The danger is that there could be a tangle of patents covering essentially the same advances combined 7 . The proliferation of patents covering incremental steps can lead to legal entanglements, hindering new entrants and creating barriers to the smooth evolution of technology by limiting the ability to build upon existing innovations. As such, this scenario poses a serious risk to fair competition. 6 Neves, P. C., Afonso, O., Silva, D., & Sochirca, E. (2021). The link between intellectual property rights, innovation, and growth: A meta-analysis. Economic Modelling , 97 , 196-209 7 Pedraza-Fariña, L. G., & Whalen, R. (2020). A network theory of patentability. The University of Chicago Law Review , 87 (1), 63-144.

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4 Moreover, the dilemma encompasses not just the immediate economic implications but also wider implications for technical advancement. Over-patenting incremental innovations hinders fair competition and prevents new companies from entering the market. This hinders the ecosystem's capacity to absorb new ideas and varied viewpoints. Furthermore, the imposition of legal restrictions on the advancement of pre-existing technologies slows down the rate of technical advancement and keeps the industry from utilizing the body of knowledge to drive game-changing discoveries. The realization that the possible effects of over-patenting go well beyond market dynamics and affect the foundation of technical innovation and its capacity to solve societal issues and spur economic growth is the driving force behind the urgent need for government action. Analysis of Inadaptability Although fundamental to its theoretical foundations, the Inventiveness Requirement faces significant obstacles in the dynamic context of modern technology. Determining inventiveness gets more difficult in domains like software development where innovation happens quickly and ceaselessly. The current legal framework is not explicit enough to appropriately address the rapidity and nature of these breakthroughs because it was developed in a different era and may not have been aware of how quickly technology is evolving 8 . As a result, there is a clear weakness in the Inventiveness Requirement's flexibility, which could unintentionally hinder rather than spur innovation in the context in which it is used. The traditional barrier of Inventiveness Requirement may inhibit incremental breakthroughs, despite their undeniable value. This is a key worry raised by the lack of precision in addressing the intricacies of rapid innovation. Consequently, patent thickets may arise from the granting of patents for trivial changes that do not meet the conventional 8 Buckingham, L., & Williams, M. (2023). I, robot: Is IP law ready for the age of AI?: ('Thaler'and other provocations to our existing systems). AUSTRALIAN INTELLECTUAL PROPERTY JOURNAL , 33 (3), 140-162.

5 requirements 9 . Comprising several patents covering incremental phases, these thickets pose a serious challenge to fair competition. They create a complex legal environment that is difficult for newcomers to understand and that stifles the forces of competition that propel advancement 10 . Moreover, the legal impediments resulting from patent thickets prevent the smooth advancement of technology by limiting the capacity to expand upon already-existing, if incremental, breakthroughs, which may further inhibit ground-breaking discoveries. Recalibrating the Inventiveness Requirement to reflect the current rate of technology change and create an atmosphere that allows innovation to flourish unhindered is necessary to address this inadaptability. Legislative Action Recommendation A unique legislative amendment to the Inventiveness Requirement is advocated to address the issues created by breakthroughs in artificial intelligence and other inventive technologies, given the changing environment of patent law and the appearance of cases like Thaler's. The Thaler case highlights the need for a sophisticated method in evaluating creativity because it determines inventorship. Legislative changes should take into account the evolving nature of innovation, particularly in domains where artificial intelligence has a significant impact 11 . This modification might entail adopting a more accommodating criteria for innovation that takes into account the distinctive qualities of every technological domain as well as the quick speed at which technology is developing. Because of Thaler's reasoning, the conventional wisdom that an innovator needs to be a human has to be reevaluated in light of AI-generated ideas and what exactly qualifies as originality. 9 Oliar, D., & Stern, J. Y. (2019). Right on Time: First Possession in Property and Intellectual Property. BUL Rev. , 99 , 395. 10 Waspiah, W., Santoso, B., Prananingtyas, P., Baiquni, M. I., & Saputra, D. E. (2023). The Role of Patent Law Reform in Ensuring Welfare State Goals for Simple Patent Innovations in Indonesia. Journal of Indonesian Legal Studies , 8 (1). 11 Ring, C. (2021). Patent Law and Climate Change: Innovation Policy for A Climate in Crisis. Harvard Journal of Law & Technology , 35 (1).

6 In order to do this, the updated Patents Act may raise the bar for determining innovation. It is important to take into account elements like the rate at which technology is developing, the importance of little improvements, and the possible effects these developments may have on competitiveness. This advice fits with appeals for legislative accuracy to eliminate ambiguities in patent law, as shown by the Thaler case. Achieving balance should be the ultimate aim of these legislative amendments 12 . While it is important to support true innovation, laws should prevent patents from being granted for unimportant or obvious discoveries 13 . In order to promote a fair and competitive market and avoid the development of patent thickets that can obstruct fair competition and technological advancement, this balance is essential. Conclusion The Inventiveness Requirement, in summary, is an essential feature of patent law that serves as a gatekeeper to ensure that patents are granted to genuinely innovative ideas while simultaneously striking a careful balance to prevent the monopolization of trivial developments. Ensuring a level playing field for competitors amidst swift technological progress is imperative, particularly in sectors such as biotechnology and software where small but steady advancements are typical. Government action is urgently needed due to the potential of over-patenting, which leads to patent thickets that impede competition and impede technical innovation. Although important in theory, the Inventiveness Requirement is not well defined in the existing legal framework, which makes it challenging to adapt to the ever evolving technology landscape. In order to address this, a legislative reform is proposed 12 Drexl, J., Hilty, R., Desaunettes-Barbero, L., Globocnik, J., Gonzalez Otero, B., Hoffmann, J., ... & Wiedemann, K. (2021). Artificial Intelligence and Intellectual Property Law-Position Statement of the Max Planck Institute for Innovation and Competition of 9 April 2021 on the Current Debate. Max Planck Institute for Innovation & Competition Research Paper , (21-10). 13 Neves, P. C., Afonso, O., Silva, D., & Sochirca, E. (2021). The link between intellectual property rights, innovation, and growth: A meta-analysis. Economic Modelling , 97 , 196-209.

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7 that adopts a nuanced approach, accounting for rate of growth and specific technological disciplines. Achieving a balance between preventing patents for minor changes and encouraging real innovation is the aim. Encouraging innovation is the government's overall purpose, and this legislative measure guarantees that the patent system will continue to be a catalyst for innovative breakthroughs and social advantages. References Buckingham, L., & Williams, M. (2023). I, robot: Is IP law ready for the age of AI?: ('Thaler'and other provocations to our existing systems). AUSTRALIAN INTELLECTUAL PROPERTY JOURNAL , 33 (3), 140-162. Drexl, J., Hilty, R., Desaunettes-Barbero, L., Globocnik, J., Gonzalez Otero, B., Hoffmann, J., ... & Wiedemann, K. (2021). Artificial Intelligence and Intellectual Property Law- Position Statement of the Max Planck Institute for Innovation and Competition of 9 April 2021 on the Current Debate. Max Planck Institute for Innovation & Competition Research Paper , (21-10). Hashemi, M. (2022). Inventing the Right Drug: Artificial Intelligence May Just be the Cure for an Antiquated Patent System. J. Intell. Prop. L. , 30 , 169. Lim, D. (2018). AI & IP: innovation & creativity in an age of accelerated change. Akron L. Rev. , 52 , 813. Pedraza-Fariña, L. G., & Whalen, R. (2020). A network theory of patentability. The University of Chicago Law Review , 87 (1), 63-144. Mills, O. (2016). Biotechnological inventions: moral restraints and patent law . Routledge.

8 Neves, P. C., Afonso, O., Silva, D., & Sochirca, E. (2021). The link between intellectual property rights, innovation, and growth: A meta-analysis. Economic Modelling , 97 , 196-209. Oliar, D., & Stern, J. Y. (2019). Right on Time: First Possession in Property and Intellectual Property. BUL Rev. , 99 , 395. Pessers, L. W. (2016). The inventiveness requirement in patent law: an exploration of its foundations and functioning . Kluwer Law International BV. Ring, C. (2021). Patent Law and Climate Change: Innovation Policy for A Climate in Crisis. Harvard Journal of Law & Technology , 35 (1). Waspiah, W., Santoso, B., Prananingtyas, P., Baiquni, M. I., & Saputra, D. E. (2023). The Role of Patent Law Reform in Ensuring Welfare State Goals for Simple Patent Innovations in Indonesia. Journal of Indonesian Legal Studies , 8 (1).

Law Reform Task Two – Patent Law

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