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When two worlds collide

AI affects IP and has implications for it, but the intersection between them is complex and not without tensions. Mark Hyland boots up his floppies.

The idea of ‘a machine that thinks’ dates back to ancient Greece. But the years 1950 and 1956 are particularly significant in the evolution of artificial intelligence (AI).

In 1950, Alan Turing published a paper in which he attempted to answer the question ‘can machines think?’ In addition, he formulated the ‘Turing Test’ to determine if a computer can demonstrate the same intelligence (or the results of the same intelligence) as a human. The value of the test has been debated ever since.

The term ‘artificial intelligence’ was actually coined in 1955, but the term was popularised in 1956 by John McCarthy and Marvin Lee Minsky during a multidisciplinary summer workshop that proved to be a seminal event – from that point onwards, AI became a field of research in its own right within computer science.

AI? AI? Oh

The World Intellectual Property Organisation (WIPO) concedes that there is no universal definition of AI, but posits that it is aimed at developing machines and systems that can carry out tasks considered to require human intelligence.

‘Machine learning’ and ‘deep learning’ are two subsets of AI. In recent years, with the development of new neural networks techniques and hardware, AI is usually perceived as a synonym for deep supervised machine learning.

The British government has defined AI as “technologies with the ability to perform tasks that would otherwise require human intelligence, such as visual perception, speech recognition, and language translation”. This definition was used by Britain’s Intellectual Property Office in its 2020 public consultation on IP/AI.

‘Intellectual property’ refers to creations of the mind, such as inventions, literary and artistic works, designs, symbols, names and images used in commerce.

The principal intellectual property rights (IPRs) are patents (which protect inventions), trademarks (distinctive signs that identify and protect certain goods/services produced by an individual or company), copyright (which protects original literary, dramatic, musical and artistic works) and design rights (which protect aesthetic aspects of a product).

IPRs are intangible assets and usually give the creator an exclusive right over his/her creation for a certain period of time.

Deus ex machina

The significance of AI cannot be overstated. AI is bringing considerable benefits to individuals, professions, businesses, and communities across Ireland.

Already, automation can significantly speed up the creation, review and redaction of legal documents, and precision/accuracy is not compromised in the process. Two important time-consuming tasks in a law firm – legal research and discovery – can be achieved very effectively and considerably faster by AI.

Predictive technology is also being used more and more in litigation to predict the outcome of court proceedings.

Like other countries, Ireland is developing its own national AI strategy in order to harness the opportunities presented and to manage the impacts. The Department of Business, Enterprise and Innovation ran a public consultation process in late 2019, seeking the views of all interested parties/stakeholders on key areas and issues that should be addressed by the strategy.

The department also sought views on what the guiding principles should be and how they could be used to drive the design, development and deployment of AI in Ireland.

In June last year, Ireland made a national submission to the European Commission as part of an EU-wide public consultation on AI policy and regulatory steps.

Ireland’s submission was made in response to a commission white paper that promotes the uptake of AI, while also addressing the risks associated with it. In response to the approximately 1,200 submissions received, the commission produced a final report last November.

Disruptive technologies

Like the internet of things, robotics, blockchain and 3D printing, AI is a technological disruptor. Together, these emerging technologies are driving the ‘Fourth Industrial Revolution’. AI is arguably the most potent disruptive force.

Growth in computing power, availability of data, and progress in algorithms have turned AI into one of the most strategic technologies of the 21^st century. With AI’s exponential growth, the stakes could not be higher. The way we approach AI will define the world we live in.

Unsurprisingly, the forum that has generated the widest international audience and most diverse views on the IP/AI intersection is the WIPO Conversation on Intellectual Property and Artificial Intelligence.

The 2019 WIPO Technology Trends Report says that nearly 340,000 AI-related patent applications have been filed since the emergence of AI in the 1950s.

The Revised Issues Paper on Intellectual Property Policy and Artificial Intelligence (WIPO/IP/AI/2/GE/20/1 REV), dated 21 May 2020 and prepared by the WIPO Secretariat, covers the main IPRs, along with data, trade secrets, the technology gap and capacity building, accountability for IP administrative decisions and, lastly, AI and unfair competition.

WIPO’s public consultations (of which there have been three so far, September 2019, July 2020 and November 2020) bring together WIPO member states and other stakeholders to discuss the impact of AI on IP.

One of the principal goals of the conversation is to help to bridge the existing information gap between AI players and regulators and to build broad awareness of the issues in this fast-moving and complex field.

Britain’s Intellectual Property Office ran a public consultation on the IP/AI intersection and the future of IP and AI policy from 7 September to 30 November 2020.

Its call for views covered five IPRs: patents; copyright and related rights; trademarks; designs; and trade secrets. Respondents also had the opportunity to provide views on matters that cut across various IPRs.

In the USA, the Patent and Trademark Office (USPTO) organised a conference on IP/AI on 31 January 2019. Building on the momentum of those discussions, in August 2019, the USPTO issued a request for comments on patenting AI inventions.

This was followed by another request for comments in October, this time concerning the impact of AI on other IP policy areas, including copyrights, trademarks, database protections, and trade-secret law. The USPTO received almost 100 comments for each public consultation.

Subsequent to the public consultations, two important reports were published by the USPTO in October 2020: Public Views on Artificial Intelligence and Intellectual Property Policy and Inventing AI: Tracing the Diffusion of Artificial Intelligence with US patents.

Through these reports, the USPTO provides both qualitative and quantitative analysis on the intersection between AI and IP law. The reports review current IP statutory frameworks in the US, as well as patent filing and grant patterns.

Crystal balls

It is clear from numerous public consultations that the themes of AI and its interface with IP are really focusing the minds of policymakers, legislators, lawyers and futurologists right across the world.

The fact that WIPO is already planning its fourth session of the IP/AI Conversation for later this year demonstrates how important and significant AI is to be considered by the guardian of international IP.

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