The consultation describes how AI
has and can play a positive role in the development of innovation
and new technology. It also acknowledges that AI will be capable in
the future of inventing and creating things that have no
discernible input from humans. When this happens, and some feel it
has happened already, an IP system needs to be in place that
strikes a balance between protecting the human benefit of the
invention while also supporting AI-led technical innovation and
artistic creativity.
Background
The UK Government previously called for views on AI and IP in
September 2020, releasing a follow-up response in March
2021 to the 92 contributions that were lodged. In that
response, the Government acknowledged that there were mixed views
on whether AI could be considered an inventor. There were many
respondents who were both for and against a change in inventorship
criteria. Some felt that all inventions would need human input at
some point and couldn't be devised solely by AI while others
said that ruling out the recognition of AI as an inventor would
discourage innovation and technological advancement.
Patent exclusion was one of the key concerns highlighted by
respondents in last year's call for views. There was a feeling
from some respondents that AI-led inventions would never be granted
patents while others pointed out that there were already many
inventions that had been created with the support of AI and had
received patents. A review of the UKIPO's policy on patent
exclusion was suggested by several respondents but in general, the
views were mixed without any clear consensus.
The new consultation from the UKIPO seeks to provide further
clarity in terms of how the IP industry thinks both copyright and
patent protection should function in the new age of AI and is
calling for new responses to three key questions:
1. Copyright protection for computer-generated works
without a human author. These are currently protected in the UK for
50 years. But should they be protected at all and if so, how should
they be protected?
2. Licensing or exceptions to copyright for text and data mining, which is often significant in AI use and development.
3. Patent protection for AI-devised inventions. Should we protect them, and if so, how should they be protected?
Patents
The third question focuses solely on patents. In the
consultation, the UKIPO claims that it has already received two
patent applications (read more about them here) where the inventor was
named as an AI system. The current regulations allow AI to assist
in the generation of an invention but a human must be named as the
inventor. The UKIPO feel that there is now room for improvement
within this framework. The objective of the consultation from a
patent point-of-view is to create a new approach to AI-led IP that
encourages the AI sector to develop new AI systems (that are not
detrimental to innovation and competition) while benefiting from
steady investment. If AI-led inventions are discouraged, the wider
industry will suffer from decreased funding and trade secrets could
become more widespread.
There are risks involved when developing a new policy. If it's
too liberal when it comes to AI-led inventions, the UKIPO could see
a rise in the number of patent applications being submitted due to
reduced innovation costs and a situation whereby larger entities
with access to the best AI systems stunt the growth of SMEs and
individual inventors who have yet to get to grips with the newest
advances in AI technology.
In the consultation, four reasonable policy options are laid out
for how AI-led patents and AI-led inventions could be dealt with in
the future. Respondents should rank these in order of preference in
their response:
Option 0. Make no legal change.
Option 1. "Inventor" expanded to include humans responsible for an AI system which devises inventions.
Option 2. Allow patent applications to identify AI as inventor
Option 3. Protect AI-devised inventions through a new type of
protection
To see the full list of legal options for policy change and a more
detailed overview of the consultation, click here.
How to respond
Responses should be written using a response form which is available on the consultation website. They should then be sent by e-mail to AIcallforviews@ipo.gov.uk.
The deadline for responding to the consultation is 7 January 2022 at 23.45pm.
Originally published December 13, 2021.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
