UK Government issues response to AI call for views
The UK Government has issued a response to a call for views recently conducted into artificial intelligence and the patent system.
D Young & Co participated in the call for views, and will be publishing a series of discussion points relating to it in our upcoming newsletters.
The response to the consultation breaks the original questions down into three main areas: inventorship, patentability, and infringement.
In relation to whether an AI can be an inventor (following the recent so-called "DABUS" decision in the UK courts), then based on suggestions by respondents the UK Government proposes to again "consult later this year on a range of possible policy options, including legislative change, for protecting AI generated inventions which would otherwise not meet inventorship criteria". If this happens, it could represent a significant and beneficial change in future grounds for inventorship and ownership of patent rights.
Regarding the common tension between AI inventions and excluded subject matter such as computer programs, respondent’s opinions were very mixed. The UK Government therefore concludes that overall the conditions for grant of AI patents are fit for purpose, but proposes to "publish enhanced IPO guidelines on patent exclusion practice for AI inventions and engage AI interested sectors, including SMEs, and the patent attorney profession to enhance understanding of UK patent exclusion practice and AI inventions". It seems likely that these guidelines may try to better harmonise outcomes (in particular relating to patent exclusion) with those from the EPO.
These issues of patent exclusion and inventorship will be discussed in our upcoming newsletters.
Other requirements of patentability, including adequate disclosure, are also discussed. The practicality (and relevance) of fully disclosing AI materials is questionable and again respondent’s opinions were mixed. The UK Government proposes to work with stakeholders and international partners to establish the feasibility, costs and benefits of a deposit system for data used to train AI systems disclosed within patent applications. The issue of disclosure in AI patents will also be a topic of a future newsletter article.
Finally, regarding the question of infringement by AIs and who is liable for them, the UK Government notes that "many of the problems in proving patent infringement by AI already exist when trying to prove patent infringement with other technologies", and that the current practice of legal persons being liable for infringement still appears to be consistent. Moreover the courts have appropriate flexibility and processes to make informed decisions, and so the UK Government does not currently intend to intervene in this area. Again, the issue of infringement both of AI patents and by AIs will be a topic of a future newsletter article.
