37 ASIAN LEGAL BUSINESS – APRIL 2024 WWW.LEGALBUSINESSONLINE.COM “Gen AI service providers must conduct pre-training, fine-tuning, and other data processing activities legally. If IP is involved, they must not infringe on the legal IP rights of others.” “These provisions have provided legal bases for regulating IP protection of Gen AI services. However, the Interim Measures only offer general principles without providing explicit clarifications for issues such as what specific operations in Gen AI services will cause IP infringement and whether there are fair use exceptions. Further legislation and practical development are needed.” In terms of patents, Long notes the importance of the updated Detailed Rules of Implementation of the Patent Law and the Patent Examination Guidelines that took effect earlier this year. “These regulations address two critical questions: whether AI itself can be recognized as an inventor or patent holder, and whether an AI application or algorithm qualifies for a patent, including how to refine the examination rules.” Long further explains that regarding the legal eligibility of AI, the Patent Examination Guidelines stipulate that “the inventor shall be an individual, and that the name of an entity or collective and the name of AI shall not be filled out in the application. For example, the applicant’s name cannot be ‘XX research team’ or ‘xx AI’. This seems to have excluded the possibility of AI being applicant.” On the patentability of AI applications or algorithms, “the Patent Examination Guidelines have specifically stipulated the examination rules for invention patent applications involving AI in the 2019 revision. The revisions this time have added circumstances where AI-related inventions are patentable and provided corresponding illustrations,” says Long. JUDICIAL PRACTICE Beyond rulemaking, Chinese courts have recently issued decisions in several groundbreaking Gen AI-related IP cases, offering judicial insights into pressing issues. Long points out that as early as 2019, the Beijing Internet Court and the Shenzhen Nanshan District People’s Court had already issued judgments regarding copyright for AI-generated content. “However, these two decisions differed in their reasoning and conclusions about whether AI-generated content qualifies as work protected by copyright, sparking widespread debate.” In the past few months, two new judgments have once again attracted attention. CHINA Image: Chokniti-Studio/Shutterstock.com
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