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AI & IP: asking the questions

Posted by: , Posted on: - Categories: AI, Copyright, Innovation, Licensing, Patents

The AI and IP consultation was launched in October. IPO CEO Tim Moss looks at the consultation’s role in the global drive to understand how IP can best support AI innovation, within the framework of the government’s National AI Strategy.

‘The UK is a global superpower in AI and is well placed to lead the world over the next decade as a genuine research and innovation powerhouse, a hive of global talent and a progressive regulatory and business environment.’ – UK  National AI Strategy 

So, why are we holding a consultation on AI and IP? 

The National AI Strategy, published in September 2021, sets out the government’s plans to invest in the AI ecosystem, support AI innovation and govern AI effectively.   

We promised to start a consultation within three months to inform how IP can best support AI innovation. On 29 October, we began a 10-week consultation.  

We are consulting on three specific areas in patent and copyright law:  

  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. This is often significant in AI use and development.
  3. Is there a case for protecting AI-devised inventions by IP rights? If yes, how should they be protected?  

We have held a series of seminars and roundtables with innovative industry, IP experts and academia working with the Office for AI, Tech Nation, AI Council and Turing Institute to explore these questions.   

AI patent applications 

AI is currently a very hot topic in the IP world. There is considerable interest both in the UK and globally in questions such as that posed by the DABUS applications. These include whether an AI system could be named as an inventor on a patent application and who (if anyone) should own the IP generated by an AI system.   

Some background on DABUS  

On 21 September 2021, the Court of Appeal found in favour of our decision to reject two UK patent applications that named the AI system, DABUS, as inventor. Current law only allows human inventors to be identified. The Supreme Court is currently considering whether to hear a further appeal.     

We welcome the Court of Appeal judgment and the clarification it gives the law as it stands in relation to the patenting of inventions made with the use of AI machines. We recognise, however, that there are legitimate questions as to how the patent system, and indeed intellectual property more broadly, should handle such inventions.  

Paving the way in the international debate 

Globally we are now in the position to increase our understanding of the interactions that future technology may have on the IP framework, through leading discussions with other offices.   

In June 2019 and July 2020, the IPO, in partnership with the World Intellectual Property Organisation (WIPO), hosted conferences to identify priority areas for further investigation and possible action.  

Bilateral and multilateral conversations regarding AI and IP with international partners are also ongoing given the transnational and multijurisdictional nature of AI and IP.  

The IPO will continue to work with partners around the world on shared challenges in research and development and lead the global conversation on AI.  

Let us know what you think 

If or when inventive and creative AI exists, it is important that the IP system secures benefits for society and mankind - the human benefits of this innovation.  

You can help us shape the UK’s domestic framework and position the UK as thought leaders in the AI and IP international debate.   

All opinions are important to us. If you are interested in participating in the consultation process, you can find the details to respond here.  

Submit your views by clicking on this link.  

The consultation is open until 7 January 2022.  

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  1. Comment by Alexandra posted on

    Is there any indication yet on when the UKIPO is likely to issue a report arising from the consultation?

    • Replies to Alexandra>

      Comment by kayleighenticknap posted on

      Thank you for getting in touch. I can advise that the consultation closed on 7 January 2022 and the government is assessing responses. The information obtained will inform a government decision on any changes to legislation. Final stage impact assessments and policy decision announcements are usually published on GOV.UK. While we can’t yet say how long the process will take, we expect publication to be during the summer.
      Best wishes, IPO Social Media team

  2. Comment by Dr Timothy Norris posted on

    I am involved in progressing patent applications relating to computer-implemented inventions to grant, often making use of services provided by the UKIPO. Often, for GB patent applications filed with the UKIPO, I will receive no search report, with the searcher alleging that a given invention is excluded from patentability pursuant to section 1(2) Patents Act 1977. When an identical patent application for the given invention is filed with PRV, I receive a superb detailed search report with useful citations, even though the PRV examiner makes a comment that the invention may potentially correspond to excluded subject matter. Whereas PRV is delivering really superb value and service, the UKIPO is absolutely hopeless in its conduct in respect of computer-implemented inventions. As a customer of the UKIPO, I get a distinct feeling that searchers confronted with a complex mathematical patent application simply use section 1(2) Patents Act exclusion as a convenient excuse to dismiss a patent application, keep the search fee and move onwards to a next task. This gives an impression of laziness and carelessness on the pat of UKIPO.

    • Replies to Dr Timothy Norris>

      Comment by laurienwebb posted on

      At the UKIPO we are aware of the vital contribution the software industry makes and the high value many firms in this area place on relevant patents. Our purpose is to grant patents across all areas of technology in as efficient and fair a way as possible which can support innovation and economic growth. In light of this we are very aware that the use of s.17(5)(b), where we report that search would serve no useful purpose, is unpopular amongst some of our customers. We issue these reports only on the clearest-cut cases where the examiner has carefully considered the application and come to the opinion that there is no prospect of a patent being granted. Overall we search more than 98% of applications. Whilst this is lower in software related technologies due to the nature of the law in these areas the figure is still above 85%.

      We are committed to ensuring we have the right level of examiner resource and expertise in computer-related technologies, and this is reflected by our recruitment strategies and investment in training. Our examiners take great effort and care over every application, and any report under s.17(5)(b) is accompanied by a detailed, reasoned explanation outlining why the examiner considers search would serve no useful purpose. We invite applicants to respond with arguments if they disagree with a s.17(5)(b) report or wish to make amendments to overcome the objections, in which case we will reconsider whether a search should be performed. We monitor this carefully and it is very rare for these cases to go on to be granted following amendment or argument.

      We understand that some of our customers would find it useful to receive a full search report even if there is no prospect of a patent being granted under UK law. However, this would increase search and examination pendency times for applications which are eligible for patent protection – including the vast majority of computer-related applications which are in fact searched. Feedback from customers indicates support for focusing resources on reducing our examination backlog and maintaining our current turnaround of searches on patentable inventions, both of which would be negatively affected by any increase in searches for non-patentable inventions.