Consultation outcome

Summary of questions

Updated 23 March 2021

Patents questions

1. What role can/does the patent system play in encouraging the development and use of AI technologies?

2. Can current AI systems devise inventions? Particularly:
   (a) to what extent is AI a tool for human inventors to use?
   (b) could the AI developer, the user of the AI, or the person who constructs the datasets on which AI is trained, claim inventorship?
   (c) are there situations when a human inventor cannot be identified?
   
3. Should patent law allow AI to be identified as the sole or joint inventor?
   
4. If AI cannot be credited as inventor, will this discourage future inventions being protected by patents? Would this impact on innovation developed using AI? Would there be an impact if inventions were kept confidential rather than made public through the patent system?
   
5. Is there a moral case for recognising AI as an inventor in a patent?
   
6. If AI was named as sole or joint inventor of a patented invention, who or what should be entitled to own the patent?
   
7. Does current law or practice cause problems for the grant of patents for AI inventions in the UK?
   
8. Could there be patentability issues in the future as AI technology develops?
   
9. How difficult do the list of excluded categories in UK law make it to secure patent protection for AI inventions? Where should be the line be drawn here to best stimulate innovation?
   
10. Do restrictions on the availability of patent rights cause problems for ethical oversight of AI inventions?
    
11. Does the requirement for a patent to provide sufficient detail to allow a skilled person to perform an invention pose problems for AI inventions?
    
12. In the future could there be reasons for the law to provide sufficient detail of an AI invention for societal reasons that go beyond the current purposes of patent law?
    
13. Does or will AI challenge the level of inventive step required to obtain a patent? If yes, can this challenge be accommodated by current patent law?
    
14. Should we extend the concept of “the person skilled in the art” to “the machine trained in the art”?
    
15. Who is liable when AI infringes a patent, particularly when this action could not have been predicted by a human?
    
16. Could there be problems proving patent infringement by AI? If yes, can you estimate the size and the impacts of the problem?

Copyright questions

1. Do you agree with the above description of how AI may use copyright works and databases, when infringement takes place and which exceptions apply? Are there other technical and legal aspects that need to be considered?

2. Is there a need for greater clarity about who is liable when an AI infringes copyright?

3. Is there a need to clarify existing exceptions, to create new ones, or to promote licensing, in order to support the use of copyright works by AI systems? Please provide any evidence to justify this.

4. Is there a need to provide additional protection for copyright or database owners whose works are used by AI systems? Please provide any evidence to justify this.

5. Should content generated by artificial intelligence be eligible for protection by copyright or related rights?

6. If so, what form should this protection take, who should benefit from it, and how long should it last?

7. Do other issues need to be considered in relation to content produced by AI systems?

8. Does copyright provide adequate protection for software which implements artificial intelligence?

9. Does copyright or copyright licensing create any unreasonable obstacles to the use of AI software?

Designs questions

1. Do you agree with the analysis above which concludes that it is not possible for AI to be the author or owner of a UK or Community design?

2. Are there, or could there be, any tensions with the current legislation when seeking to register a design or be recognised as the owner of an AI-created design? Who would be the legal entity applying for the rights?

3. Who should be recognised as the author of a design created by AI where the system has been bought from a supplier, and the buyer has provided input or data to the system? Does the wording of legislation need to be changed?

4. Do you consider that legislation should be changed to allow AI systems to be recognised as the author of a registered design or designer of an unregistered design?

5. If so, how should we assess when AI stops being a tool programmed by a human and becomes an intelligent entity capable of producing its own IP? What proof or evidence would be required?

6. Unlike UK domestic legislation, the CDR has no provisions relating specifically to computer-generated designs. Does this result in legal uncertainty in relation to authorship and ownership of computer-generated designs? Would the same apply to AI-generated designs?

7. Are there any other issues in relation to the CDR which we should consider in relation to AI?

8. Can the actions of AI infringe a registered or unregistered design? Can AI do the acts set out in law?

9. When considering infringement are there, or could there be, any difficulties applying existing legal concepts in the registered designs framework to AI technology? Does AI affect the use of the “informed user” in measuring overall impression?

10. If AI can infringe a registered design, who should be liable for the infringement? Should it be the owner, the programmer, the coder, the trainer, the operator, the provider of training data, or some other party?

Trade marks questions

1. If AI technology becomes a primary purchaser of products, what impact could this have on trade mark law?

2. Are there or could there be any difficulties with applying the existing legal concepts in trade mark law to AI technology?

3. Does AI affect the concept of the “average consumer” in measuring likelihood of confusion?

4. What is the impact of AI on the drafting of section 10? Can AI “use in the course of business” a sign which may be confusingly similar or identical to a trade mark?

5. Can the actions of AI infringe a trade mark?

6. If AI can cause trade mark infringement, does this shift who could be liable? Should it be the owner, the operator, the programmer, the trainer, the provider of training data, or some other party?

Trade secrets questions

1. Is trade secret protection important for the AI sector? Does the nature of AI technologies and business influence your answer?

2. Does AI impact UK trade secret law? Does UK trade secret law give adequate protection to aspects of AI technology where no other intellectual property rights are available?

3. What are the advantages and disadvantages of using trade secrets in the AI sector? Could information that is not shared inhibit AI development?

4. Do trade secrets cause problems for the ethical oversight of AI inventions?

Respond to the call for views by emailing AIcallforviews@ipo.gov.uk