Research Paper Concerning How the Creations Made by Use of AI and 3D Printing
Data Should Be Protected under Industrial Property Law
I. Purpose of This Research
The purpose of this research is to prepare basic data for further examination as to
how the creations made by use of AI and 3D printing data ("3D data") should beprotected. In this research, we (i) analyzed the current situation from a technicalperspective and predicted future technical development, (ii) grasped the needs of users
for protection provided under industrial property law, (iii) gathered information about
the protection currently provided under industrial property law and about the related
issues under discussion in other countries, and (iv) studied experts' opinions andarguments about legal issues, etc.
II. Contents of This Research
1. Issues concerning the creations made by use of AI from the perspective of industrial
property rights(1) AI
AI is gaining public attention as a technology that makes it possible for a machine tothink like a human being. With the development of AI technology, creative activities byuse of AI technology are expected to become increasingly sophisticated. In the future,
based on an instruction from a human being, AI is expected to make a creation that canbe regarded as an invention.
Some people predict that AI will autonomously make and execute an action plan inaround 2020 and acquire humanlike capabilities in 2030. AI is expected to reach thelevel where AI engages in creative activities on its own.
(2) Protection for creations made by use of AI under the current law(i) Criteria for considering a creation made by use of AI as a creation made by a natural
personA creation made by use of AI technology would be considered to be an invention
made by a natural person if that person has been involved in the process of identifying aproblem, selecting the possible means to solve the problem, or evaluating the feasibility.
Furthermore, if a natural person conceives of an invention or reduces it to practice, theinvention would be considered to have been made by that person. Further examinationneeds to be made to determine whether each of these criteria should be used
independently or should be used together with the rest of the criteria in a comprehensive
1manner.
Even if an invention made by use of AI is considered to be valuable, it cannot beprotected unless the inventor is identified. If we aim to solve this problem by trying to
identify the inventor, it would cause a problem of identifying somebody as the inventor
even though his or her contribution to the invention is very small. Thus, these two
problems should be examined simultaneously. It is necessary to continue our researchon how human contribution to creations will change with the advancement of AI
technology and newly establish the criteria to determine which creations should beprotected and what kind of human involvement is required to receive such protection.
(ii) Ownership of the rights for creations made by use of AI
Under the current Patent Act, only a natural person can be regarded as an inventor.
In principle, the inventor is identified based on the degree of his/her contribution to thecreation. Therefore, in the case of an invention made by use of AI, the ownership of therights for the invention should be determined based on the degree of contribution madeby each of the natural persons for the invention.
(iii) Protection of learned models under industrial property law
In connection with the protection of creations made by use of AI, it would bemeaningful to examine whether industrial property law should provide protection not
only for the inventions completed as a result of the creation process, but also for thelearned models produced in the process of making inventions.
In general, a learned model is considered to be a combination of an AI program anda parameter. As long as a learned model is defined as "AI program plus a parameter," inother words "program, etc.," it can be protected under industrial property law. On theother hand, if a learned model is defined merely as a parameter, it would not be
regarded as "program, etc." and could not be protected under the Patent Act unless it hasa certain data structure. However, some people have said that a learned model defined insuch way could be regarded as "program, etc." because a learned model, even if itconsists solely of data, could be considered to have a function that is useful forcomputer information processing.
In this way, a learned model can be defined in more than one way. Depending on
which definition is adopted, the treatment of a learned model under industrial property
law would change. The development of AI technology could lead to the emergence of
new types of learned model. Thus, it is necessary to carefully observe thetransformation of learned models and conduct further examination.
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(iv) Necessity for protection for the creations made by use of AI
One of the reasons for promoting protection of creations made by use of AI is toallow people who were involved in the creation process to collect investments.
The basic idea that such protection is needed would not change considerably eventhough some people might argue that the appropriate amount of protection should bedetermined for each creation in consideration of the degree of the use of AI in theprocess of creation.
(3) Legal issues concerning autonomous creation by AI
According to the survey results, some respondents replied that AI will start making
creations autonomously within 20 years. This suggests that autonomous creation by AI
is considered to be feasible to some extent.
Under the current law, which considers that only a natural person is entitled toexercise rights, no autonomous creations by AI would be protected. As of today, there is
no official record concerning a creation made autonomously by AI that deservesprotection under the Patent Act. Thus, it is not necessary to urgently determine whether
industrial property law should provide protection for autonomous creations by AI. So far,
we do not recognize the necessity to grant rights for autonomous creations by AI. In fact,some people suggest that granting rights for such creations would cause problems.
We need to carefully observe future technical development and, at an appropriate
timing, reconsider the issue of how to treat autonomous creations by AI in considerationof the needs of companies, etc.
(4) Treatment of creations made by use of AI in other countries
We examined the relevant laws and the issues under discussion in the U.S., Europe,
the U.K., Germany, France, China, and South Korea.
As in Japan, in the aforementioned countries and region, a creation made by use of
AI will be protected under their respective laws. Those countries and region are thesame as Japan in terms of the stance that AI is not entitled to exercise rights and that norights can be granted for autonomous creations by AI.
In those countries and region, a learned model could be protected under industrial
property law as long as it is defined as "AI program plus a parameter." However, if it isdefined merely as "parameter," the stances of those countries and region vary in termsof whether the learned model can be protected and which industrial property act should
be applied. We need to conduct further research on AI technology and learned models in3

consideration of the possibility that each country or region defines "learned model"
differently.
2. Issues concerning 3D data under industrial property law(1) 3D printing technology"3D printing" is a method of producing a three-dimensional object. Usually, itmeans an additive layer manufacturing technique, which allows us not only to produce a
prototype, but also to manufacture products and parts by ourselves. Thanks to theadvancement of 3D scanning technology, some 3D products in the market could bemarketed in the form of 3D data in the future.
(2) Legal issues concerning 3D data
The distribution of 3D data on the Internet would allow various entities to engage inmanufacturing activities. Since this could increase counterfeit production, it is necessary
to consider the risk of distributing 3D data of a product protected under industrial
property law and consequently facilitating infringement of the industrial property rights.
On the other hand, the distribution of 3D data is expected to encourage a large
number of people to share data, exert their ingenuity in making creations, and develop
new ideas and products, which might consequently result in new business projects andindustrial development. Thus, it is necessary to study how to protect 3D data underindustrial property law.
(i) Whether 3D data can be regarded as "program, etc."
From the perspective of the Patent Act, the treatment of 3D data would change
depending on whether 3D data falls under the definition of "product." In other words, inorder to consider that 3D data indirectly infringes any right holder's right for a product,
the 3D data must be considered to be a "product" used for the production of the product.
Similarly, 3D data would not be protected by an industrial property right unless it can be
regarded as a "product." In order to consider 3D data as a "product," it must fall under
the definition of "program, etc."
Regarding this point, the survey results revealed as follows. Not all 3D data can be
regarded as "program, etc." While the type and number of data items included in 3D
data could be taken into consideration when determining whether the 3D data can be
regarded as "program, etc.," further examination is necessary. A significant number of
respondents commented that none of the 3D data can be regarded as "program, etc."
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These comments should be taken into account as well.
No clear criteria have been established to determine what type of 3D data can be
regarded as "program, etc." However, according to the interview survey results, it canbe said that 3D data can be regarded as "program, etc." if the 3D data satisfies two
conditions in terms of the purpose of use and the technical aspect of the data as follows:(i) the 3D data can be used for the purpose of 3D printing or will be used only for the
purpose of 3D printing and (ii) the 3D data has the function of shortening the production
time and enhancing the configuration accuracy.
(ii) Infringement of industrial property rights by 3D data
We studied the 3D printing process and examined whether an act of preparing or
distributing 3D data or an act of manufacturing products by use of 3D data could
constitute infringement.
An act of preparing or distributing 3D data could constitute an act of indirect
infringement if the 3D data can be regarded as "program, etc." An act of manufacturing
products by use of 3D data would constitute direct infringement. On the other hand, if aperson provides a 3D printer, a determination as to whether such act of aiding
infringement constitutes an act of infringement or an act of tort under the Civil Codeshould be made in consideration of whether such person was aware that the 3D printerwould be used to commit an act of infringement.
Currently, the answer to the question as to whether an act of preparing anddistributing 3D data could constitute an act of indirect infringement under industrial
property law would differ depending on whether the 3D data can be regarded as"program, etc." or not. Thus, in order to create an environment where any person
engaging in 3D printing business can promote distribution of 3D data and production of
products without any worries, we need to examine whether it is reasonable to determine
whether 3D data infringes industrial property rights based on whether the 3D data canbe regarded as "program, etc."(iii) Protection provided for 3D data under industrial property law
At this moment, since no patent has been granted to 3D data, users cannot easily
imagine what types of 3D data would be found patentable. Therefore, we need tocontinue discussions as to what types of 3D data should be protected under industrial
property law and provide examination guidelines to users.
On the other hand, according to the survey results, some respondents said some
types of 3D data should be protected, while other respondents said no protection should5be provided to 3D data. No respondents pointed out any problems related to 3D data
distribution. Since 3D printing technology is still under development, high-value added
3D data could be created in the future. Thus, we need to continue examining how 3Ddata should be protected under industrial property law in consideration of the trends inthe industry and the advancement of 3D printing technology.
(iv) Treatment of 3D data under industrial property law in other countries and region
We conducted a survey to gather information about the infringement of industrial
property rights by 3D data and the possibility of providing protection for 3D data underindustrial property law in the U.S., Europe, the U.K., Germany, France, China, andSouth Korea.
Among these countries and region, only in Japan and South Korea is adetermination as to whether an act of handling 3D data can constitute infringement
made in consideration of whether the 3D data can be regarded as a "product" under the
Patent Act or the Design Act (Design Protection Act in South Korea).
In many countries, no clear determination has been made as to whether 3D data canbe protected under industrial property law. Thus, we need to continue examining whattypes of 3D data can be protected and whether no protection should be given to 3D data,
while collecting information about future technical development and the issues underdiscussion in other countries
III. Summary
Any creation made by use of AI could be protected under the current law as long as
a human being has created it by using AI as a tool. However, with the advancement oftechnology, if the degree of human involvement becomes so small that AI can beconsidered to be making creations autonomously, those creations would not be protectedunder the current law, which only protects the rights of natural persons.
A learned model can be protected under industrial property law only if it is definedas "AI program plus a parameter," in other words "program, etc." On the other hand, if alearned model is defined merely as "parameter," it would be regarded as simple data andwould not be regarded as "program, etc." and could not be protected under the Patent
Act unless it has a certain data structure. According to the results of the questionnaire
survey conducted abroad, if a learned model is defined merely as a parameter, thestances of those countries and region vary in terms of whether the learned model can beprotected and which industrial property act should be applied. We need to conduct
further research by gathering the latest information about learned models.
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With the development of technology, it is difficult to predict how AI will be used
and whether human involvement in creative activities will become smaller. Thus, it isnecessary to continue our research, while taking into consideration how the manner ofusing AI technology in creative activities will change as a result of the development ofAI technology. Based on the results of such research, we need to identify what part ofthe current legal system is insufficient or unclear.
From the perspective of the Patent Act, the treatment of 3D data would change
depending on whether 3D data falls under the definition of "product." In order toconsider 3D data as a "product," it must fall under the definition of "program, etc."
Under the Design Act, indirect infringement could be recognized only if the 3D data is a"product."
So far, there is no clear definition of 3D data that can be regarded as "program, etc."
However, if it is assumed that 3D data could be regarded as "program, etc." undercertain conditions in terms of the purpose of use and the technical aspect of the data,
those conditions would be (i) the 3D data can be used for the purpose of 3D printing or
will be used only for the purpose of 3D printing and (ii) the 3D data has the function ofshortening the production time and enhancing the configuration accuracy. At the sametime, it should be noted that some people consider that none of the 3D data should be
regarded as "program, etc."
The answer to the question as to whether an act of preparing and distributing 3D
data could constitute an act of indirect infringement under industrial property law would
differ depending on whether the 3D data can be regarded as "program, etc." or not. In
order to create an environment where any person engaging in 3D printing business canpromote distribution of 3D data and production of products without any worries, weneed to examine whether it is reasonable to determine whether 3D data infringes
industrial property rights or not based on whether the 3D data can be regarded as"program, etc."
Since 3D printing technology is still under development, high-value added 3D data
could be created in the future. Thus, we need to conduct further examination on how 3Ddata should be protected under industrial property law in consideration of the demand
for free distribution of 3D data and the development of 3D printing technology.

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