A New State of Mind
The pace and depth of technological innovation are presenting new challenges for the world’s existing IP frameworks. Sarah Morgan investigates.
The Fourth Industrial Revolution is upon us. The human race is blurring the lines between the physical, digital, and biological worlds at a rapid pace, fundamentally changing the way we live, work, and connect with each other.
It is a fusion of advances in artificial intelligence (AI), robotics, the Internet of things, 3D printing, genetic engineering, quantum computing, and other technologies, according to software company Salesforce (US).
But, as technology thunders forward, legal frameworks across the world are struggling to keep up with a constantly changing situation.
Part of the challenge for lawmakers—and the lawyers who try to interpret the rules—is the sheer pace of technological innovation.
With AI a foundation technology of many advances in the Fourth Industrial Revolution, from the 1950s through 2016, innovators and researchers worldwide filed applications for nearly 340,000 AI-related inventions. More than half of them have been published since 2013, according to “WIPO Technology Trends 2019–Artificial Intelligence,” a report by the World Intellectual Property Organization (WIPO). The trend is expected to continue.
Statistics from the European Patent Office (EPO) emphasize this breakneck pace, which shows no signs of slowing.
In 2019, the EPO received a record 181,000 patent applications, up 4 percent from the prior year. The growth was driven by patent applications related to digital communication (up 19.6%) and computer technology (up 10.2%). The latter was fueled by the rise of AI.
Then, this October, the United States Patent and Trademark Office (USPTO) reported that filings for AI patents doubled from 30,000 in 2002 to 60,000 in 2018.
“Our team recognized that AI was being used to create patentable output without a traditional human inventor, and that patent offices did not have rules to deal with this.”
Ryan Abbott, University of Surrey
A Disruptive Influence
AI has been around for six decades, but in recent years patenting in the field has skyrocketed.
The surge in this technology churns up some big questions inside and outside the IP sphere. Intellectual property (IP) offices across the globe are being forced to confront difficult questions on the intersection of technology and law, questions that could rewrite the entire IP system.
In August 2019, a team of researchers based in part at the University of Surrey in the United Kingdom filed patent applications in Europe, the UK, and the United States, naming AI system Dabus, created by Stephen Thaler (US), as the sole inventor.
Ryan Abbott, Professor of Law and Health Sciences at the University of Surrey (UK) and author of “The Reasonable Robot: Artificial Intelligence and the Law” (CUP 2020), led the team behind the patent applications in a bid to “raise awareness and effect change” in patent law.
According to the professor, historically, the law has tended to lag technological development but there is a growing awareness that this should not happen with AI. Instead, it is important to ensure the right rules are in place to develop the technology in a socially beneficial way.
“Our team recognized that AI was being used to create patentable output without a traditional human inventor, and that patent offices did not have rules to deal with this,” Mr. Abbott said.
The university’s strategy has the backing of IP professors elsewhere.
“We were hoping that jurisdictions will decide that patents on AI-generated inventions should be permitted because they encourage use and development, and result in more innovation.”
Lawrence Lau, University of Hong Kong
Lawrence Lau, Adjunct Associate Professor of Law at the University of Hong Kong (Hong Kong SAR, China), said: “If we have sufficient epistemological grounds to determine that the creation is done by the AI, independent of the commands of the AI creator, we have no conceptual or policy difficulty in recognizing the AI as the creator/inventor of new creation.”
However, he added, recognizing AI as an inventor is one thing, while granting the AI the exclusive and monopolistic right to copy or use the creation is quite another.
In September, the High Court of England and Wales dismissed the Dabus team’s appeal against the holding by the United Kingdom Intellectual Property Office (UKIPO) that the AI should not be deemed as an inventor according to Sections 7 and 13 of the Patents Act 1977.
“We were hoping that jurisdictions will decide that patents on AI-generated inventions should be permitted because they encourage use and development, and result in more innovation—which is the primary purpose of the patent system,” Mr. Lau said.
Then, in late December 2019, the EPO weighed in on two Dabus European AI patent applications, refusing them and finding that they did not meet the requirement that an inventor designated in the application has to be a human being, not a machine. The Dabus team appealed the decisions in June 2020.
It is a similar story in the United States. In August, the team sued the USPTO and its Director and Under Secretary of Commerce for Intellectual Property, Andrei Iancu, challenging the Office’s rejection of patent applications for inventions created by Dabus.
Carolyn Knecht, Associate General Counsel, Senior Director–Trademarks, Copyrights and Corporate Marketing at HP Inc. (US), said that the ramifications for IP of using AI to generate patentable ideas must be understood. HP Inc. is one of the top five filers of AI patent applications in the U.S., according to the USPTO.
Among the questions, she said, are: “Does it actually promote innovation—which is the justification for allowing a patent owner to own a monopoly in the first place? Or does it mostly produce ammunition for non-practicing entities?
“Could allowing AI-created inventions to be patented overload the patent system in the future? On the other hand, can AI help us find answers to problems that elude human inventors, and if so, why shouldn’t such inventions be eligible for protection?”
IP offices are proactively taking up the task of meeting the potential challenges posed by AI, by gathering public opinion and investing in task forces to tackle these conundrums. In June 2019, IP5, a forum consisting of the world’s five largest patent offices, announced it would establish a task force focused on improving the global patent system in response to emerging technologies.
Since August 2019, the USPTO has issued two federal notices, requesting comments on the intersection between AI and IP. After receiving approximately 200 unique comments, the Office published its report, “Public Views on Artificial Intelligence and Intellectual Property Policy,” last month.
According to the USPTO, the majority of commenters believe the U.S. legal system is well equipped to handle the emerging issues raised by AI, but that the Office must keep a close eye on legal and scientific developments in AI to ensure the country maintains its position as a leading IP jurisdiction.
“The Fourth Industrial Revolution is based on disruption, and we cannot accept development without accepting disruptions in the way business is done.”
Nancy Samuriwo, Samuriwo Attorneys
Since the USPTO issued its notices, both WIPO and the UKIPO launched consultation processes. Earlier this year, WIPO published a paper, incorporating the comments it received, which looked at the most pressing questions likely to face IP policymakers and forming the basis of WIPO’s Second Session of Conversation on IP and Artificial Intelligence in July. The UK consultation is ongoing.
“AI challenges the theoretical and normative foundations of the law. The proper response is not to shoehorn it into existing frameworks or to regulate purely reactively,” said Mr. Abbott. “We need input from a variety of stakeholders and then we can make changes designed to generated social benefit in a thoughtful manner.”
Taking this theory outside the realm of patent law raises more questions.
Nancy Samuriwo, Founding Partner of Samuriwo Attorneys (Zimbabwe), explained that in Nigeria, the protection of copyright is currently the lifetime of the author plus 75 years. But, she questioned, “If the copyright is now owned by AI, how do we relate the period of protection to a whole new concept of an owner?”
She added: “The Fourth Industrial Revolution is based on disruption, and we cannot accept development without accepting disruptions in the way business is done.”
“We are struggling with how to apply some of those traditional IP rights and laws to 3D printing. ”
Marc Trachtenberg, Greenberg Traurig LLP
AI is not the only revolutionary technology that presents unique challenges. 3D printing (and its interaction with IP) has been around since the 1980s, but as it becomes more widely used by industry, it becomes more dangerous from an IP perspective.
“The same attributes that make 3D printing desirable to industry also make it attractive to criminals,” said Marc Trachtenberg, Partner at Greenberg Traurig LLP (US). He explained that while the low cost of entry, the ability to create perfect copies based on a scan or file, and the fact that a large space is not needed to manufacture 3D printed goods are helpful for legitimate businesses, they can also facilitate infringement.
“We are struggling with how to apply some of those traditional IP rights and laws to 3D printing. The traditional framework is very useful at stopping traditional infringement, but as the supply chain becomes more digital, more issues will arise online where the existing legal framework is not really sufficient,” he explained.
If that weren’t challenging enough, there is a new technology that could exacerbate these issues even further: 4D printing. As the next evolutionary step from 3D printing, 4D printing uses programmable materials to print a 3D object which can change shape or properties when placed under the influence of external stimuli.
“The technology is still in the developmental stage but all the major players which manufacture 3D printers are investing heavily, driven by the potential of the technology,” Mr. Trachtenberg noted.
With the market for 4D printing expected to reach more than US $537 million by 2025, according to MarketsandMarkets (US), the technology is big business. But with big opportunities come big risks.
With 4D, one of the many questions without any answers is, what happens if the 4D-printed good is not infringing in its original form but, after its transformation, features a trademark that has not been licensed?
However, Ms. Knecht suggested, “We should not let overblown concerns about infringement translate into placing unnecessary burdens on the adoption of this technology.”
She added: “Brand protection professionals are likely to see some benefits for their clients. Anticounterfeiting ‘covert’ technologies, such as security inks and digital watermarks, could be printed into the product itself.
“Localized, on-demand production means no theft of goods from warehouses. Of course, it could also mean localized, on-demand production of counterfeits, so enforcement tactics will have to evolve.”
“Sharing IP rights in the many emerging technologies does benefit a lot of civilizations that have been separated by national boundaries and the historical ladder of development.”
Alice Lee, University of Hong Kong
Sharing Is Caring
It’s not just enforcement tactics that must evolve—as the Fourth Industrial Revolution turns current practices on its head, some see an opportunity for a complete rethink about IP.
“IP owners have to engage with and embrace a mind shift. IP rights are not going to be the same. The emphasis on monopolization is undermined by the Fourth Industrial Revolution—‘Industry 4.0’—because it emphasizes sharing,” said Ms. Samuriwo.
Ms. Knecht does not agree. She believes that sharing IP is nothing new in the technology industry, so the risks that come with taking advantage of Industry 4.0 technology are likely to remain the same as those for other technologies.
“Interoperability is often key to commercializing a product. Technology companies have licensed, cross-licensed, created standards, and jointly developed IP for a long time,” she said.
For those who do embrace sharing their IP, the benefits will be felt beyond the companies involved, to society as a whole, said Alice Lee, Associate Dean and Associate Professor of Law at the University of Hong Kong (Hong Kong SAR, China).
“From the perspective of the differentiated and unequal development of countries across the globe, sharing IP rights in the many emerging technologies does benefit a lot of civilizations that have been separated by national boundaries and the historical ladder of development,” she added.
Turning to the idea that having to share IP reduces the incentive to innovate, Ms. Lee concluded: “Even if such complaints are not off the mark, given the present stage of technological and economic developments, I trust that we care more about equality among people instead of profiting the elite technology corporations.”
Video courtesy of Envato Elements / dubassy
Check out on-demand session IP Policy Considerations and Strategies for Protecting AI to learn more about the different types of IP protection available, inventorship/authorship issues, and strategies for patenting AI in Europe and the U.S.
Other on-demand sessions on the patent track are IP Rights and Technology Transfer Reforms under the U.S.-China Economic and Trade Agreement, and Public Policy in the Patent World. INTA is presenting all three on-demand sessions in collaboration with the Intellectual Property Owners Association. INTA gratefully acknowledges the Intellectual Property Owners Association for their collaboration, commitment, and expertise in helping to develop the Patent Track for the Annual Meeting & Leadership Meeting.
Friday, November 20, 2020