In 2020, the United Kingdom (UK) government had called for responses from organisations and individuals who are using Artificial Intelligence (AI) technologies commercially, to share their views on a range of questions such as should IP protect inventions or works that are made by machines? If so, who should own that IP?

In March 2021, the UK government published its response to this call. Overall, the respondents are positive about AI's role to support human researchers, creators and inventors. The respondents also expressed satisfaction towards UK's current IP laws and said they are effective in responding to various AI-related challenges related to liability for infringements by the use of AI systems. 

While there was general consensus that AI should not own IP, opinions differed on the question of whether AI inventions and copyrights should have IP protection. The strongest resistance towards AI-generated output protection did not come from industries in the life sciences and technology sector but from artists and other creative industries. However, the UK document states that overall the outlooks were positive. 

Patents for AI Inventions

Regarding giving patents to AIs as inventors the views were mixed too. While representatives of innovative industries were of the clear opinion that AI-created inventions and or even assisted in creation by AI should have the possibility of patenting, opinions were mixed when the question was raised where it would be appropriate to list AI as an inventor on a patent. For those who opined that AI should not be recognised as an inventor, the law should clarify the bifurcation by including the clause, “a person by whom the arrangements necessary for devising an invention is undertaken”; while a group suggested doing away with the concept of the inventor when AI-produced inventions are considered. 

The document clarifies that responses were influenced by the thought that was it even possible for an AI system to devise an invention without some sort of human involvement; and reasoned that if such is a wide understanding, the existing IP laws for patenting should not be altered. However, since there are several respondents who highlighted that current inventorship may hamper innovations and cause a lack of transparency in the innovation process. 

The UK government is therefore proposing the following:

• conduct a consultation later in 2021 to explore the various policy possibilities including legislative change, for protecting AI-generated inventions which would otherwise not meet the current inventorship criteria; and
• have a study conducted on the economic effects of incentivising IP framework's role in incentivising investment in AI, alongside other factors.

The owner of AI-created inventions

While everyone was in consensus that an AI should not own its inventions, the question of who then should own such inventions or the resulting patent didn't have any consensus. While some opined that the AI system's owner should have the rights, others debated that the AI’s owner, its developer or even its user were all “obvious possibilities” for entitlement to the AI's invention.

Should UK rethink the exclusions of patents to AI inventions?

A majority of respondents did express that the inability to obtain patents hampers innovations in the AI sector. This was believed to be more of an issue for protecting developments in AI systems themselves (more so than for inventions that are generated wholly or partly by AI). However, most thought that UK patent laws on exclusions from patentability were fit for purpose when it comes to AI software, but nevertheless, there was a need for greater clarity and predictability in the UK Intellectual Property Office’s patent exclusion practice. The common view was that the UK IPO should change its practice (rather than there being any need for legislative change) and there was also a call for international harmonisation – with some suggesting that the UK IPO should adopt an approach more akin to that of the European Patent Office.

As a response, the UK IP Office (IPO) has expressed the need to review its patent practices in light of the comments. Further, it will enhance IPO's guidelines on AI inventions. 

Disclosing AI inventions

While there was a general agreement that AI patent applications include appropriate details on the invention for a skilled person to perform it, many respondents expressed that there would be challenges if AI patent applications are to satisfy the requirements for disclosure. Many expressed concerns over the practicalities of the large amounts of information such as data sets and algorithms to be filed for patent. For this, many respondents were looking for a better system to enable them to file large amounts of supporting information. However, other respondents disagreed and thought that large volumes of accompanying information should not be needed.

As a response, the UK government is willing to explore the feasibilities, costs and benefits of such deposit systems along with the relevant stakeholders and a few international partners. 

Inventive Step

The current legislative framework on obviousness was flexible enough to deal with AI innovation – their view being that “the person skilled in the art” has a range of tools available to them and that AI technologies will be one of those tools. Most respondents, therefore, did not consider it necessary to extend the concept of “the person skilled in the art” to the “machine trained in the art” – although some thought this may become necessary at a later date if AI‑generated inventions come to dominate an area of technology.

Copyright and data used to train and develop AI systems

Copyright

The overall view for the existing copyright laws was that they sufficed the current needs and situations where AI software used copyright materials for training and development. However, the technology companies and researchers opposed this point saying that copyright restrictions made getting access to works difficult, leading to biases in the AI systems. Other thought that voluntary licensing was adequate and available for those who needed it. 

The UK government have expressed that they will now re-access the approach where copyright owners license their works for AI-related used and seek inputs from stakeholders to explore how licensing and copyrighting exceptions can be extended for innovation and research. 

Data 

While data is a crucial component for developing and training AI systems, there was only one response asking for data protection to preserve its value while sharing the data for AI initiatives and ease concerns about disclosing data to patent offices in support of patent applications. A handful of other respondents did ask for better data protection, that would enable AI data confidentially by allowing data to be filed with AI regulators. 

Despite reporting these comments, the UK Government has not been spurred into taking any action to review the protections that are currently available in respect of data