Does the law need to catch up with Artificial Intelligence

Why grey matter still counts when it comes to patenting inventions

Mark Poulton is a Partner and Head of the Corporate & Commercial Department and can be contacted on 01323 434420 or mp@stephenrimmer.com

Each day brings new milestones in the achievements of Artificial Intelligence; many in response to the health and economic challenges of the past two years.  Following the discovery of what would later be known as the Covid-19 virus, sophisticated computer resources around the world were diverted into helping to identify potential vaccines for the virus. 

When vaccine candidates were identified within three months of the first reported cases of the coronavirus, this felt like hyper-speed, compared to the decades often involved in the process.  This speed was attributed in part to the exceptional pressure created by the pandemic but would have been unimaginable without researchers being able to harness the highly advanced technological resources to help analyse vast amounts of data about the virus.  

Artificial Intelligence - or the acronym AI by which it is often known - is a branch of computer science concerned with building machines capable of simulating human intelligence to perform tasks and processes.  And although science fiction has long been coloured by the dangers, such as Arnold Schwarzenegger's Hollywood-blockbuster Terminator films, the positive benefits continue to show themselves as the predictions for the future are fast becoming reality.  

Other headline-grabbing developments engendered by AI range from autonomous driving skills, focused on enabling transport solutions without a human safety driver on board, through to natural language processing, able to identify aspects of human speech such as sentiment and intent, helping to power more accurate search results, chatbots and virtual assistants, with the resulting benefits for businesses.  In the art world, AI has worked in tandem with 3D printing to recreate a painting by Picasso which had lain hidden for more than 100 years beneath a later masterpiece by the artist. 

But while the use and application of AI continues apace, with all predictions being that it will revolutionise the way all vaccines are created in future, the law is having to play catch-up.  Two recent developments have put the spotlight on this. 

Firstly, the entrepreneur who has brought attention to the difficulties of registering a patent on an invention created by AI.   

Dr Stephen Thaler brought applications in multiple jurisdictions around the world, designed to test the potential for the owner of an AI system to be the default owner of any inventions derived, with the AI system itself named as the inventor on the patent applications. 

In the UK, he filed two patent applications in his name in 2018, which resulted in a request from the IPO that he provide statements of inventorship. He responded by saying that the inventor was an artificial intelligence machine calledDABUSand that he had acquired the right to grant of the patents because he owned this creativity machine', an expression which harks back to the language of sci-fi that predicted such developments.

In response, the IPO said that naming a machine as inventor did not meet the requirements of the Patents Act 1977, which required that a naturalperson be identified. The IPO also challenged how Dr Thaler could derive the right to the grant of the patent from the inventor, when the inventor was a machine.

After the applications were rejected by the IPO, Dr Thaler appealed and the case reached the High Court in 2020, where the court upheld the position of the IPO, saying the applications did not satisfy the law relating to the Patents Act 1977, and those aspects of copyright also considered by the court.

Now, the Court of Appeal has given its highly anticipated judgement, the highest national court to issue judgement so far, and this upholds the decision of the High Court, finding that only a person can be an inventor within the meaning of the Patents Act 1977, and that Thaler does not claim to be the inventor, so he cannot be entitled to a patent.

While the ruling confirms that, as the statute stands, it's old-fashioned grey matter that is needed and silicone chips can't count when identifying an inventor, in his ruling Lord Justice Arnold has described Dr Thaler's application as a test case. 

For the case involves principles that reach into all such applications of Artificial Intelligence and although the Court of Appeal decision does nothing to move the law forward immediately, it sets the scene for a further appeal to the Supreme Court.

Alongside, the judgement is likely to be valuable in demonstrating the need for legislation that ensures patent laws are fit for future purpose and able to accommodate AI-generated inventions.

This brings us to the most significant development:  the release of the UK government's National Artificial Intelligence (AI) Strategy which sets out a ten-year goal of making Britain a global AI superpower'. 

The strategy draws on guidance from the AI Council's 2021 AI Roadmap and other related plans, including the Innovation Strategy and National Data Strategy.  The government is now set to undertake consultation across a range of areas, one of which will be AI and intellectual property, which will involve the IPO, the UK's Intellectual Property Office.

The consultation will look at the options for copyright and patents where AI is involved, as the government acknowledges that while IP can help encourage and safeguard business innovation, incentivising investment and enabling knowledge-sharing, there is currently a gap in the law.  Those researchers and developers harnessing AI need the right support if they are to develop and commercialise their IP in an environment that protects their rights and enables them to grow.   

There is already pressure on the government to fast-track the consultation process on its AI strategy with the IPO so that it catches up with the fast-changing face of computer science, and Dr Thaler will provide a strong case study to support this.  

Whether the case of the Doctor and his creativity machine is finally resolved by a judicial decision or by legislation, the reverberations of his case and the government's strategy are going to be keenly watched by all sectors making use of Artificial Intelligence, including the highly pressured life sciences.

Certainly, if the ambition outlined in the government's strategy is to be realised – with the UK becoming a science superpower' and the best place for researchers to innovate' – we need an IP framework that gives our entrepreneurs and developers the potential to protect their inventions and exploit the commercial potential, whoever or whatever the source of the innovation.