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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.

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