Some questions about the use of Artificial Intelligence in patents and in the process of creating plant varieties

Abstract

Artificial Intelligence is a necessary element for precision agriculture. Machine Learning systems enable a much more efficient analysis of Big Data that is not only leading to higher productivity on farms, but also to phenotypically and genotypically distinguish plant varieties in DUS tests, although this has not yet been approved by UPOV in its Guidelines. Being generative and, in some cases, autonomous, Artificial Intelligence can create biotechnological inventions and new plant varieties. If such creations give rise to patent or plant variety applications, these will not be admissible, as patent law requires the inventor to be a natural person, and UPOV requires the breeder to be a person, and Artificial Intelligence is not. This does not preclude the use of Artificial Intelligence by an inventor or a breeder, which may give rise to legal problems that the legislator should address.