UK considers new IP right for AI

The measure is one of several options UK policymakers are considering implementing to ensure UK IP law “strikes the appropriate balance to encourage the development of AI and its use across the UK economy”, following the publication of the government’s national AI strategy in September.

Other targeted changes to UK IP laws, being consulted on by the UK’s Intellectual Property Office (IPO), include a possible reduction to, or entire removal of, copyright protection currently available for computer-generated works. The expansion of the existing text and data mining exception to copyright is also under consideration, which could have significant impacts on the use of big data in the future.

The IPO said the option to develop a specific IP right in relation to AI-devised inventions is being considered because “the current rule for inventorship in the UK could potentially be improved to better support innovation as the capability of AI increases”.

Earlier this autumn, the Court of Appeal in London ruled that AI systems cannot own or transfer patent rights under UK law currently. The potential new IP right in relation to AI-devised inventions would “protect inventions which currently fail to qualify for patent protection as they are AI-devised, and a human inventor cannot be identified”, the IPO said in its consultation, which provided details of the variety of ways any new right could operate.

The IPO said: “A new type of right could have similar conditions for grant as those currently required for human devised inventions. However, it could have a stricter test of inventive step. A stricter test could be appropriate because AI may invent in ways that human inventors would not deem obvious. Alternatively, the right could be granted without a test of obviousness, with novel AI-devised inventions being automatically protected. This would provide certainty that AI-devised inventions would be protected quickly in recognition of faster innovation turnover. Decisions on validity [of the right] could be left to the courts.”

The IPO said there would be both reasons for and against shortening the term of protection available for AI-devised inventions to less than the 20 years that patents can apply for.

Reasons the IPO cited for shortening the term would be because businesses might not need as long to obtain a return on their investment in the AI system and to facilitate competition from, and innovation by, others. However, it said that if the right provided less protection than a patent “it would potentially encourage applicants not to acknowledge AI inventorship to gain patent protection” or alternatively “acknowledge AI inventorship when AI was not actually involved” if this meant gaining access to the protection quicker than they would do so with a patent.

Alternative options to the development of a specific IP right in relation to AI-devised inventions are being considered by the IPO. These include changing UK patent law to include humans responsible for an AI system which devises inventions within the concept of an ‘inventor’, or amending the legislation to allow patent applications to identify AI systems as an inventor.

The IPO’s consultation on the potential IP reforms closes on 7 January 2022. It comes after the IPO trailed some of the changes that could be implemented earlier this year and possible AI-related reforms were subsequently outlined in the UK’s national AI strategy.

“IP is one of the levers available to government to increase returns on investments for inventors and creators and thereby incentivise investment in AI to invent and create,” the IPO said. “This consultation considers whether the current IP regime strikes the appropriate balance to encourage the development of AI and its use across the UK economy.”

“The government’s objective is to incentivise investment in AI development and to promote the use of AI for public benefit, whilst enabling competitive markets, consumer choice and fair access to IP-protected goods for the benefit of society,” it said.

“Any measures we put in place should: encourage innovation in AI technology and promote its use for the public good; preserve the central role of intellectual property in promoting human creativity and innovation; be based on the best available economic evidence,” the IPO said.