Hot on the heels of the UK Court of Appeal judgement in Thaler v Comptroller General of Patents (reported in our previous bulletin), and as promised in the UK Government’s response to the call for views on Artificial Intelligence (AI) and Intellectual Property (IP) earlier in the year, the UK Government has now launched a further consultation on AI, specifically in relation to copyright and patents.
Released on the last working day before Halloween, the consultation seeks views on, amongst other things, the vexed question of AIs and inventorship. The story so far is that a number of major patent offices around the world (including the UK) have confirmed that their respective patent laws simply do not allow for ascribing inventorship to an AI. Whilst it is an open question whether current AIs are at the point of creating what would be considered an “invention” under these laws, there is a strong desire that IP law does not end up lagging this exciting and fast moving technology.
The UK Government consultation seeks views on three broad potential solutions to the current AI inventorship question in the UK (along with, of course, a proposal to maintain the status quo).
The first option for change is perhaps the most low impact, simply re-defining “inventor” to include “the human who made the arrangements necessary for the AI to devise the invention” – echoing to some degree the existing provisions on computer generated works in relation to Copyright. Here, absent the applicant publicising the fact, no-one would know whether an invention was “AI devised” or not.
The second involves an explicit indication that the invention was devised by an AI – either by naming the AI, or by permitting no-one to be named as inventor. The consultation is eager to point out that legal ownership issues would have to be addressed with changes to the law, and even more eager to point out that there is no proposal to confer AI systems themselves with “the right or ability to apply for or own patent rights” – the assumption seems to be that the person in option 1 would be the first owner of such an invention.
The most radical suggestion comes in the third option which floats the idea of a completely new right to protect AI devised inventions. Apart from having more “limited exclusive rights”, likely via a reduction in term, the proposed details are left very much up in the air. The new right could have a higher bar for inventive step than patents; it could have no examination on inventive step at all, with “decisions on validity left to the courts”.
The consultation acknowledges the potential for tension between the existing patent system and such a parallel patent-like system, especially one that might make the decision as to whether an AI actually devised an invention crucial to the level of protection on offer. Indeed, one cannot help but think of Birss LJ’s dissent in the recent UK Court of Appeal judgement (above) about the dangers of “creating an opportunity for new kind of argument about fraud on the Patent Office” – though, of course, big changes are rarely without the risk of unintended consequences.
With AI more and more touching on almost every field of technology the impact of any change (or otherwise) may end up being felt far and wide. Certainly, should the UK jump first on such legislation it is likely other jurisdictions will watch with interest to see the consequences. The closing date for responses to the consultation is 7 January 2022, leaving a few long cold winter nights ahead for any interested parties to consider a response.