Ordre Public Exceptions for Algorithmic Surveillance Patents

As a doctoral student, my academic relationship with Reto Hilty was characterized by the shared interest in open models of governing intellectual property law and compulsory licensing with the notion of balance as the focal point. Later, his work investigated the impact of artificial intelligence (AI) on intellectual property law (Lee et al., Artificial intelligence and intellectual property. Oxford University Press, Oxford, 2021; Hilty et al., Intellectual property justification for artificial intelligence. In: Lee JA, Liu KC, Hilty RM (eds) Artificial intelligence and intellectual property. Oxford University Press, Oxford, pp 50–72, 2021; Drexl et al., Technical aspects of artificial intelligence: an understanding from an intellectual property law perspective. Max Planck Institute for Innovation & Competition Research Paper 19-13. , 2019; Drexl et al., Artificial intelligence and intellectual property law – position statement of the Max Planck Institute for Innovation and Competition of 9 April 2021 on the current debate. Max Planck Institute for Innovation & Competition Research Paper 21-10. , 2021)), whereas my post-doctoral research focused on socio-legal dimensions of AI. This contribution explores the role of patent protection in algorithmic surveillance. It evaluates whether ordre public exceptions from patentability should apply to such patents, due to their potential to enable human rights violations. It concludes that in most cases, it is undesirable to exclude such patents from patentability, as the patent system is ill-equipped to evaluate the impacts of the exploitation of such technologies. Furthermore, the disclosure of such patents has positive externalities from the societal perspective, by opening the black box of surveillance for public scrutiny.