AI: decoding IP conference - day 2 highlights

Following on from the summary of day 1, guest contributor Dr Sonja Mroß (Freshfields Bruckhaus Deringer LLP) has this report of five key points arising from day 2 of last week's joint UK IPO and WIPO conference:

1. We have yet to balance IP law and competition law 

The question is if (and how) authorities can control the design of IP rights to help produce results beneficial to wider society. Professor Ruth Okediji (Jeremiah Smith Jr Professor of Law at Harvard Law School and Co-Director of the Berkman Klein Center for Internet and Society at Harvard University), asked whether it is advisable to grant an exception to patent and copyright protection in order to avoid infringement allegations relating to the input of training data into the AI system.

2. AI robot judges and examiners are still science fiction

Dr Ilanah Fhima (Reader in IP law at University College London) explained that the EUIPO recently launched an AI image-searching tool which identifies marks with a similar appearance compared with an image uploaded by a user. However, machine learning models are not yet ready to determine the likelihood of confusion in trademark law.

3. AI as a member of a skilled human team?

The question on how to define the skilled person in the AI era was discussed by Sir Robin Jacob (Sir Hugh Laddie Chair of IP law at University College London). He rejected the deployment of a machine skilled in the art, but quite entertainingly proposed that AI systems could instead become part of skilled human teams. In fact, this concept is already established in several patent laws and would result in a higher standard for obviousness, particularly with regard to super-intelligent AI.

Your skilled team of the future

4. New does not always mean better

The existing patent system may be able to offer sufficient protection for categories of AI-related inventions (inventions on AI, inventions using AI as a tool, and truly AI-created inventions). Dr Heli Pihlajamaa (Director of the European Patent Office) made reference to the EPO’s guidelines published on the patentability requirements. She argued that there is no need to amend the EPO’s current patentability concept to find answers to the four key questions arising in the field of AI-related inventions (determination of inventorship, applicable legal standard for the assessment of patented subject matter, black-box patenting and sufficiency of disclosure, and definition of the person skilled in the art).

5. Collaboration could be the basis for a global approach to AI 

Professor Alice Lee (Associate Dean and Professor of Law at the University of Hong Kong) talked about the different layers of a potential global divide and advocated building non-legislative networks – she said these networks could help countries struggling with legislative amendments to keep pace with the rapidly-changing AI area. Tim Moss (CEO of the IPO) closed the conference by claiming that policymakers are keen to continue discussions with the industry on changes to current IP frameworks to address industry concerns prompted by AI developments.