Inventing the Right Drug: Artificial Intelligence May Just Be the Cure for an Antiquated Patent System

• Jurisdiction: United States,Federal
• Citation: Vol. 30 No. 1
• Publication year: 2022

Inventing the Right Drug: Artificial Intelligence May Just be the Cure for an Antiquated Patent System

Matthew Hashemi
University of Georgia, jwt74222@uga.edu

Inventing the Right Drug: Artificial Intelligence May Just be the Cure for an Antiquated Patent System

Cover Page Footnote

J.D. Candidate, 2024, University of Georgia School of Law, M.B.A. Candidate, University of Georgia, Terry College of Business, 2024. I would like to dedicate this Note to my family. Thank you for your unwavering support and encouragement.

This notes is available in Journal of Intellectual Property Law: https://digitalcommons.law.uga.edu/jipl/vol30/iss1/6

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Hashemi: Inventing the Right Drug

INVENTING THE RIGHT DRUG: ARTIFICIAL INTELLIGENCE MAY JUST BE THE CURE FOR AN ANTIQUATED PATENT SYSTEM

Matthew Hashemi^*

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TABLE OF CONTENTS

I. INTRODUCTION.................................................................................171

II. BACKGROUND...................................................................................172

A. NATURAL INTELLIGENCE VS. ARTIFICIAL INTELLIGENCE 172
B. HISTORY OF PATENT LAW.......................................................175
C. PATENT LAW TODAY................................................................176

III. ANALYSIS............................................................................................182

A. SAVING LIVES THROUGH ARTIFICIAL INTELLIGENCE......182
B. DEMAND FOR REFORM............................................................183
C. TO ARTIFICIAL INTELLIGENCE PATENT PROTECTION..............................................................................184
D. FUTURE DEVELOPMENT: PROTECTING ARTIFICIAL INTELLIGENCE INVENTIONS...................................................185

1. Standard of Patentability......................................................186
2. Patent Exclusivity.................................................................186

IV. CONCLUSION......................................................................................187

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I. INTRODUCTION

Artificial Intelligence, also known as "AI," is a revolutionary technology that makes it possible for machines to learn from experience, adjust to new inputs, and perform human-like tasks.¹ AI has the power to reshape how society innovates, integrates information, analyzes data, and generates solutions.² In particular, AI has begun to play a critical role in the pharmaceutical industry by transforming drug discovery, manufacturing, diagnostics, and treatment.³ But this technological revolution also comes with inherent uncertainty under the current United States patent system, especially about the patentability of inventions created by AI.⁴ Although the purpose behind United States patent law is to encourage innovation, patent protection currently cannot be obtained for inventions created by AI.⁵ Accordingly, industries such as the pharmaceutical industry, which require incentives to innovate, cannot realize these incentives without patent protection for inventions created by AI.⁶ Therefore, to satisfy the need regarding incentives to innovate in the pharmaceutical industry, Congress must consider reforming the scope of patent protection to sufficiently encompass inventions created by AI.

This Note will focus on the current scope of patent protection under the U.S. patent system and issues of patentability for the pharmaceutical industry in the era of AI technology. The Note will first provide a background on AI technology and its application in the pharmaceutical industry. The background section of this Note will then discuss the brief history behind the U.S. patent law system and its development through legislation over time. This section further details

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the current state of patent law on who may seek patent protection, which types of intellectual property are covered by patents, and the process of obtaining patent protection. This section concludes with a discussion of how inventions created by AI are classified and the limited patent protection currently offered for AI under the U.S. patent system. Section III of this Note analyzes the beneficial impact of AI in the pharmaceutical industry and calls for patent law reform to protect drugs invented by AI. In addition, Section III considers and rebuts potential arguments in resistance to AI patent protection. Section III further proposes reforms and solutions that Congress should consider to ensure that patent law will encompass and protect drug inventions created by AI. Finally, this Note concludes with a discussion of how expanding patent protection for AI in the pharmaceutical industry will efficiently incentivize innovation and promote public health.

II. BACKGROUND

A. NATURAL INTELLIGENCE VS. ARTIFICIAL INTELLIGENCE

Human beings are widely considered to hold the highest level of biological intelligence ever observed.⁷ As rational beings, humans can solve various complex issues through experience and intuition, supplemented by rules of logic, decision analysis, and statistics.⁸ This sort of biological or "natural" intelligence encompasses the ability to autonomously and efficiently accomplish complex goals that are restricted to "things that only humans can do."⁹

Natural intelligence is generated through biological neural networks of flesh and blood, which make up the human brain.¹⁰ Unlike other forms of intelligence, natural intelligence has given humans the ability to learn, multitask, and combat various multifaceted situations over time.¹¹ Due to such an immense cognitive capacity, the human brain can solve various arithmetic, conceptual, spatial, economic, socio-organizational, and political problems.¹² Even though the natural intelligence of humans is high compared to other animal species, "in

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absolute terms[,] it may be very limited in its physical computing capacity."¹³ On the other hand, machine learning or AI has become the cornerstone of innovation and has built upon natural intelligence to replicate and exceed how humans perceive and react to the world.¹⁴

AI refers to systems or machines that mimic natural intelligence to perform tasks and can iteratively enhance themselves based on the information and data collected.¹⁵ AI systems generally consist of several databases, operations, and control modules interacting in a complex fashion to form an automatic problem-solving system.¹⁶

AI systems may either be categorized as weak or strong AI.¹⁷ Weak AI is designed to perform a single or "narrow" task and cannot solve other problems outside of its specific field.¹⁸ Strong AI, on the contrary, is programmed to think and reason autonomously.¹⁹ The quintessential form, or "holy grail," of AI technology is General AI, capable of solving issues and achieving goals just as well as humans through comparable cognitive, emotional and social behavior.²⁰

Although many believe AI refers to human-like robots and machines, AI systems are not intended to replace the natural intelligence of human beings.²¹ Conversely, the underlying purpose behind AI technology is to "significantly enhance human capabilities and contributions."²² AI has significant advantages given its ability to solve problems at significant speeds, its ability to work 24/7, and its ability to collect information and formulate solutions without bias.²³ In particular, the development of machine learning technology has drastically transformed the effectiveness of AI systems.²⁴

Machine learning is an analytical process in which an AI system autonomously derives rules and procedures from patterns within a data set and creates explanations or predictions.²⁵ These rules and patterns derived through

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the machine learning process are then used to formulate and test hypotheses and solutions for an issue.²⁶ The capabilities of machine learning technology can significantly benefit researchers through AI technology's ability to focus on specific problems and offer solutions to various problems based on available data.²⁷

The many advantages of AI technology and machine learning allow society to transform numerous industries, from autonomous cars to drug discovery.²⁸ In particular, the pharmaceutical industry has taken great interest in AI and its potential to drastically impact the field of medicine.²⁹ Traditionally, developing and discovering a novel targeted drug is a costly and long-term process, costing billions of dollars, with a development process exceeding ten years.³⁰ Discovering new drugs is extremely complex, as "[i]t requires navigating a combinatorial space of more than 10⁶⁰ molecules [in order] to find a suitable drug candidate."³¹ Despite such challenges, the digitization and advancement of AI technology—especially through machine learning—has considerably increased the potential of discovering new drugs.³²

Implementing AI to aid in drug development, for instance, has allowed specialists to find a novel antibiotic, Halicin, and various other drug candidates, out of more than 100 million molecules, in a fraction of the time required by traditional methods.³³ In addition to antibiotics, AI has also been implemented to accelerate the search for the COVID-19 vaccine.³⁴ Therefore, AI technology has been proven to identify new drug molecules or new uses for old drugs.³⁵ The current advancements in AI technology have unquestionably boosted target drug discovery at an unprecedented speed, leading AI to be recognized as one of the "must-win technologies of the future."³⁶

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B. HISTORY OF PATENT LAW

The purpose of a patent is to offer protection to an inventor of "any new and useful process, machine, manufacture or composition of matter."³⁷ Holding a patent provides an owner of an invention with "the right to exclude others from making, using, offering for sale, or selling" the owner's invention in the U.S. or importing the owner's invention into the U.S.³⁸

The foundation of U.S. patent law dates back to the medieval era in...