An Infinite AI Cage?

Tom Dickson & Avi Freeman | August 2019

Since the advent of computers, by Charles Babbage, computational growth has been exponential. Increases in computational power have brought about better software and technologies. Our understanding of how we can implement computers in our everyday life has also increased. Recent decades have shown a surge of innovation in the fields of Artificial Intelligence (AI) and deep learning. The increase in this field has been so great in recent years that computers themselves are slowly beginning to show learning abilities and even artistic qualities. What does all this mean for the world, and future, of Intellectual Property (IP)?

To accommodate this increase in computational ability IP Law, it seems, is going to have to adapt. This is a pattern we have seen before, in areas such as genetics and indeed software, when new technologies arrive that were not conceived of when patent laws were first written.  Recently Lord Kitchin, Justice of the Supreme Court, spoke on this at the UKIPO and WIPO Conference “AI: decoding IP”. With AI on the horizon, Lord Kitchin’s insight as an IP specialist on the Supreme Court is invaluable.. The full speech is linked to below, but for now I will comment on a some of the questions and hurdles he feels will need to be addressed.

Lord Kitchin is generally quite optimistic about the future of AI and the role IP might play as a support. This is a stark contrast to the opinions of some of the more vocal celebrities who have voiced their opinions on it, such as Elon Musk, and the late Professor Stephen Hawking, whose pessimism towards AI was quoted by Lord Kitchin. It is heartening to hear that Lord Kitchin disagrees with their negative outlook. He specifically mentioned a few areas that are currently thriving due to innovation in AI technologies; “detection of bank fraud”, “machine translation” and “recommender systems such as Amazon and Netflix”.

Indeed, the future does seem very bright.  Driverless cars are emerging, image recognition is improving and AI has even been ‘taught’ to create art. A recent painting, ‘Portrait of Edmond Belamy’, “sold to an anonymous bidder for $432,000”.  Whilst these technologies face scrutiny for various reasons, in his speech, Lord Kitchin focused more on the implications of these technologies, and their products, within the world of IP.

He raised some thought provoking questions. “How do AI inventions fit into the picture?” Should an invention be created by AI, as the portrait was above, how do we patent it? If these AI inventions are considered patentable, “who is the inventor and to whom should the invention belong?”

Kitchin noted, “AI is based on particular kinds of computational models and algorithms and is therefore to be treated in the same way as mathematical methods. So is there once again a presumption AI is not patentable”?

Considering the fact that ‘these inventions’ are created by AI, Lord Kitchin asked “How is obviousness to be assessed”?   The EPO itself is of course aware of the difficulty and devotes a section of the 2018 Guidelines for Examination to it (G-II-3.3.1). Much of the power of AI comes in its ability to process large bodies of data and determine patterns upon which behaviour or actions can be based.  The Guidelines comment that “…the steps of generating [a] training set and training [a] classifier may … contribute to the technical character of the invention if they support achieving [a] technical purpose”.  Readers will note that that there is still no definition of “technical” though, an issue that has always been problematic when it comes to understanding or predicting EPO behaviour in these fields.

Poignantly, Lord Kitchin also asked “where will it end, and will the system become swamped by computer generated innovations and end up stifling human innovation?”

These are all very important questions, and the mere framing of them was itself useful.

Similar questions were also raised regarding the rights and ownership of creative media and the copyright rights of AI.

When discussing the AI generated painting Lord Kitchin asks, “Is it appropriate that this work should be protected by copyright?”

“Who is the Author?”

In the UK, at least, it seems that “the author of a literary, dramatic, musical or artistic work which is computer-generated is the person who made the arrangements necessary for its creation.”

If, as Lord Kitchin says, “AI can now be used to generate new and better software”, where is the end?

It certainly does appear to be “time to move on” as Kitchin suggests. However, it is clear there are quite a lot of difficult hurdles to overcome; more than were touched upon in the speech. It is however reassuring to see that these difficulties are being considered by Justices of the Supreme Court. There are certainly interesting times ahead for the patent system.

Lord Kitchin ends positively:

“The law may be a little way behind the technology at this stage. But time and again law makers have met challenges such as these. Now is the time to do so for AI.”