INTRODUCTION
Neurotechnology is the new frontier of technological growth and progress. It is a field of technology related to the integration of the human brain with computer-interfaces. Initially, neurotechnology was only an exploratory science focused on research. In recent times, however, this field has rapidly transitioned into one of commercial significance. With this transition, it brings up the various unique complications related to intellectual property (IP).
Neurotechnology primarily falls into the realm of patent protection. Hence, it lies at an intersection of fundamental rights of privacy and patent protection. This has also led to the emerging concept of neurorights. The major challenges that must be considered when discussing the future of intellectual property in neurotechnology relates to balancing patent protection with ethical considerations and determining ownership of sensitive neuro-data.
NEURORIGHTS AND INTELLECTUAL PROPERTY PROTECTIONS
Neurorights are essentially those rights specifically aimed at protecting the neural activity in a person’s brain. These rights constitute the emerging international legal framework of ethical, legal, social and natural principles of freedom or entitlement related to an individual’s cerebral and mental domain. The principles of neurorights are closely interlinked with protection of individual mental privacy and free will in decision-making.
In October 2021, Chile became the first country in the world to recognise the significance of neurorights and include the same in its constitution. The purpose of such inclusion was to ensure protection of mental privacy, free will, and non-discriminate access to neurotechnology for its citizens. Through recognition of neurorights, the neural data and brain activity of a person is given the same status as an organ of the human body, which cannot be bought, sold or trafficked. Internationally, privacy regulations such as the General Data Protection Regulation (GDPR) provide general data privacy protections, they do not address the unique nature of neural data, leaving critical gaps.
The interplay between neurorights and privacy is obvious, but these rights also intersect with intellectual property law. The patent grant process for neuro-technologies, such as brain-computer interfaces (BCIs) and neural stimulators, is complex as they cannot be allowed to infringe on the basic human rights. As neurorights gain international recognition, it may also be time to consider whether neurorights must be recognized as a distinct form of intellectual property, as it quite literally represents the intellectual activity of a person.
PATENTABILITY IN NEUROTECHNOLOGY
Neurotechnology inventions are unique devices combining neuroscience, software and engineering. Hence, patentability of the same is met with unique challenges due to the interdisciplinary nature. The traditional standards of novelty, non-obviousness and industrial applicability are not easily applicable in the case of neurotech innovations. Apart from the technical issues, securing patent protection to this technology is also subject to various ethical considerations.
- Interdisciplinary Complexity – Neurotechnological devices often integrate components like signal-processing algorithms, neural hardware, and bioengineering designs. Each element may not qualify for patent protection, and hence, evaluating them as a single system or invention becomes complicated. Accurate evaluation of the patent application will require high-level of technical expertise in various scientific fields.
- Algorithm Patentability – Algorithms are a vital component in many neuro-technologies, yet most patent frameworks do not consider them to be patentable subject matter. In the absence of integration into a physical device, the lack of patent protection for algorithms creates uncertainty for inventors.
- Ethical Oversight – Neurotech-based devices that influence mood or cognitive states of the human brain may face increased ethical scrutiny in addition to standard patent evaluations. The additional step of ethical review is necessary to ensure that individual freedoms of autonomous decision-making is not restricted by neurotech.
OWNERSHIP OF NEURAL DATA – LEGAL AND ETHICAL CHALLENGES
Neural data related to brain activity may be generated or collected by neurotechnology. Initially, this data was only utilised for research purposes, but this information holds significant commercial value in the modern world. Neural data or brain data can be analysed to make inferences regarding a person’s thoughts, emotions, cognitive activity and behavioural patterns, making the data commercially valuable.
However, there is controversy surrounding the ownership of such brain data. On one hand, neurotech companies assert their ownership over the data collected using their devices on the grounds that the information is integral to their proprietary technology. Their argument is that since the data generated and collected is a direct output from the implementation of their neurotech, the same will fall under their ownership and intellectual property.
On the other hand, advocates of neurorights have put forth the argument that the neural data represents the personal identity of the person in whose brain the neural information is generated. This data harvested by neurotech contains intimate insights into a person’s thinking, emotions, behaviour and cognitive states. Hence, ethically, neural data must belong to the person generating it as it relates to their identity and autonomy as a human being. Furthermore, enabling corporations to commercialise said data means loss of an individual’s ability to control and consent how their neural data is used.
INADEQUACY OF EXISTING LEGAL FRAMEWORKS
The current frameworks governing intellectual property rights are extremely inadequate in the context of neurotechnology and neurorights. They lack any governing principles or provisions specifically covering these aspects. As neurotechnology tools are rapidly evolving, the implications of the same are profound.
Existing patent frameworks are not prepared to cover the interdisciplinary nature of neurotech inventions as discussed previously. Furthermore, the existing patent frameworks do not have uniformity across national jurisdictions. This creates uncertainty for neurotech inventors as the extent of patent protection is also varied. There is also an absence of specialised frameworks dealing with neurotechnology or neurorights as distinct concepts under intellectual property law.
THE ROAD AHEAD FOR NEUROTECHNOLOGY IN INTELLECTUAL PROPERTY
The intellectual property implications of neurotechnology grow complex with advancements in the field. Emerging trends such as AI-based neural innovations, personalised BCIs and wearable neurotechnology devices require the existing legal frameworks to be modified accordingly.
The debate surrounding the ownership of neural data is complicated and multifaceted. This may also result in the need to recognise individual neurorights as a separate category of intellectual property. Neural data is not merely informational, it is a direct representation of a person’s intellect. The innate connection between personal identity and intellect requires that neural data be treated as a distinct category of intellectual property.
Neurorights are poised to be the new frontier of intellectual property and will likely be key in the formulation of future IP policies. The incorporation and recognition of neurorights relating to neural data and brain activity information in the patent evaluation process for neurotech inventions is crucial to considering its ethical implications. Additionally, clearer guidelines regarding ownership and consent-based usage of neural data are essential to ensuring transparency and preventing misuse or trafficking of neural information, especially in commercialisation.
On a more national level, governments must cooperate to facilitate harmonizing patent evaluation standards across jurisdictions, either through multilateral treaties or regional agreements, which would foster innovation while maintaining ethical safeguards.
CONCLUSION
Neurotechnology is a rapidly growing field of science and innovation, and has far-reaching impact on intellectual property law. Challenges such as patentability of neurotech inventions, ownership of neural data and the recognition of neurorights, require immediate attention from legislators, legal experts, and all stakeholders.
While existing traditional IP frameworks are inadequate, there must be international collaboration for the creation of a specialised framework governing neurorights and neurotech which could be integrated into the global IP system. There is also an urgent need to modify and adapt patent frameworks to make ethical standards an integral part of the patent evaluation process. Additionally, neurorights should be recognized as a distinct form of intellectual property, reflecting their direct connection to individual intellect and identity, thereby granting individuals legal ownership of their cognitive outputs.
It is only a matter of time before neural data collected using neurotechnology is commercialised on a large scale. Hence, proactively adapting the IP frameworks to allow neurotech innovation while safeguarding individual rights will be key to prevent exploitation.
Written by Varshika, Legal Intern at Intepat IP
