Guest Blog | Government commits to looking deeper at how the IP system can support AI-driven innovation
On 23 March 2021, the UK Government published its response to its call for views on artificial intelligence and intellectual property. This was an important consultation looking at a range of issues, but most significantly for the life sciences sector, it asked if inventions derived from artificial intelligence (AI) machines should be afforded the same protections as human inventions. The BIA was amongst those who took part in the consultation.
In the BIA's response, we outlined the growing importance of AI in life sciences and the need to offer the same protection to inventions generated through the use of AI as is offered to human-generated inventions.
Overall, the BIA is very encouraged by the outcome of the consultation. Many of the views submitted were aligned with those of the BIA, and some common themes are starting to emerge. This has enabled the UK Government to make some constructive follow-up plans to delve deeper into specific aspects of the UK’s IP laws and their operation in the context of AI, paving the way for positive change. Here are some of the key highlights for the life sciences industry in relation to the views that the UK Government received, and its proposed next steps.
In general, those who responded to the consultation were enthusiastic about AI supporting human researchers and inventors to develop new technologies, and many agreed that patents have an important role to play to support AI innovation. There was a consensus that AI systems themselves should not own any IP rights. However, there were mixed views about whether patents should be available for inventions that have been generated by AI and, if so, exactly who should own them. There were also differences in opinion as to whether AI systems should be named as inventors on patents (including from those who supported the patenting of AI-generated inventions). Interestingly, the UK Government commented that some respondents’ answers to these questions were influenced by their scepticism as to whether it would be possible in practice for an AI system to devise an invention without human input – and so those respondents thought that the current rules on inventorship did not need to change.
Most significantly, many respondents shared the BIA’s view that the UK’s current rules on inventorship may act as a barrier to innovation and foster a lack of transparency in the innovation process as the use of AI increases. In reaction to this, the UK Government is now planning to build on the suggestions it has received so far and consult later this year on a range of possible policy options for protecting AI-generated inventions which would otherwise not meet the existing inventorship criteria - with the potential of proposing legislative changes. The UK Government is also proposing to commission an economic study to enhance its understanding of the role that the IP framework plays in incentivising investment in AI.
Those responding to the consultation generally agreed that the UK’s current IP laws are able to meet the challenges presented by AI in many other areas. In particular, in line with the BIA’s views, the large majority of respondents thought that the current legislation on inventive step is already flexible enough to deal with AI innovation. Similarly, most respondents thought that the UK’s existing patent laws on the categories of excluded subject matter are generally fit for purpose – but said that there was a need for greater clarity and predictability as to how the UK Intellectual Property Office applies the patent exclusion criteria in practice, and a need for international harmonisation. Some shared the BIA’s view that the UK IPO should take an approach which is more closely aligned with that taken by the European Patent Office in this area. In response to these views, the UK IPO is now proposing to review its patent practice and publish enhanced IPO guidelines on AI inventions.
There was also general agreement amongst the submissions that AI patents are capable of meeting the general requirement that patents must include enough detail to enable a skilled person to perform an invention. However, some people expressed a concern about the practical difficulties of filing large amounts of information as part of AI patent specifications which may be needed in order to meet this requirement. As a result, the UK Government is now proposing to work with stakeholders and other international partners on the feasibility, costs and benefits of a deposit system for data used to train AI systems that are disclosed within patent applications. Nevertheless, there were several respondents who saw no need for a deposit system and thought that large volumes of accompanying information should not be a common feature of AI patent specifications.
Copyright and Data
Finally, many respondents believed that current copyright laws are generally adequate and adaptable enough to cover situations where copyright materials are used to train or develop AI software. However, there was relatively little mention about protection for data more generally (as opposed to copyright works), despite the huge significance that data has for AI systems.
Clearly confidentiality laws and contractual measures will continue to pay an important role in relation to data, although these protections will not always be available e.g. where the data has been published. A small handful of the responses did suggest that a new form of data protection might be needed to protect data that is filed with AI regulators, and just one respondent proposed that there should be a new form of protection for data in order to encourage data sharing and the filing of patent applications where the relevant datasets might need to be disclosed.
In the BIA’s submission, we suggested that the UK Government may wish to use Brexit as an opportunity to revisit the scope of the EU-derived database right which, to date, has not materially stimulated the creation and maintenance of databases – with a view to improving the protection for databases and the data held within them. The UK Government’s response to this AI consultation has not mentioned any immediate follow-up action in relation to the protection of data, but the BIA will be watching the developments in this area with a keen interest.
This blog was written by the AI sub-committee of the BIA IP Advisory Committee.