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Article United Kingdom: Intellectual Property Office Rules Artificial Intelligence Cannot Patent Inventions

On June 28, 2022, the government of the United Kingdom (U.K.) responded to a consultation conducted from October 29, 2021–January 7, 2022, by the U.K.’s Intellectual Property Office on how intellectual property produced by artificial intelligence (AI) should be protected. The consultation focused mainly on intellectual property law and AI, and covered three main areas: the question of copyright protection for computer-generated works without a human author, licensing or exceptions to copyright for text and data mining, and patent protection for AI-devised inventions.

Regarding patent protection for AI inventions, the government concluded that current patent law does not recognize AI as possessing the capabilities to invent, and therefore inventions created without human assistance cannot legally be patented. While the paper reiterated the U.K. government’s support for the intellectual property system and any subsequent innovations produced by AI, it also pointed out that “a proliferation of patents covering AI-devised inventions could have a detrimental effect on innovation and competition[,] … which may be a problem for small and medium enterprises (SMEs) and start-ups struggling to grow.”

The government’s nonrecognition of AI’s ability to invent reflects the approach of the U.K.’s courts. In the 2021 case Thaler v. The Comptroller-General of Patents, Designs and Trademarks, Stephen Thaler, the creator of an AI system called DABUS, filed a claim against the Intellectual Property Office under the Patents Act 1977 when it refused patents to his AI. He claimed that DABUS, and not he, was wholly responsible for the invention of products such as food containers and emergency warning lights due to its own natural evolution in intelligence. The Intellectual Property Office noted that DABUS could not be listed as an inventor under sections 7 and 13 of the Patents Act 1977 because the system was neither a “natural person” nor an inventor. The U.K. Court of Appeals closely examined section 13(2) of the Patents Act 1977, which states:

An applicant for a patent shall within the prescribed period file with the Patent Office a statement—

(a) Identifying the person or persons whom he believes to be the inventor or inventors; and
(b) Where the applicant is not the sole inventor or the applicants are not the joint inventors, indicating the derivation of his or their right to be granted the patent;

and, if he fails to do so, the application shall be taken to be withdrawn.

The Court of Appeals ultimately decided that the statutory wording implied that only natural persons could enjoy the rights guaranteed. As Lady Justice Elisabeth Laing put it, with Lord Justice Arnold agreeing: “Only a person can have rights. A machine cannot. … A patent is a statutory right and it can only be granted to a person.”

In the United Kingdom, the principal piece of legislation concerning intellectual property law, which covers both patent law and copyright law, is the Copyright, Designs and Patents Act 1988. Neither patent law nor copyright law affords AI protection. Section 1 of the Copyright, Designs and Patents Act 1988 notes that copyright subsists only in “original literary, dramatic, musical or artistic works, sound recordings, films, and the typographical arrangement of published editions.” In a 2015 notice, the Intellectual Property Office emphasized the importance of establishing originality of the work in order to find subsistence, stating “copyright can only subsist in subject matter that is original in the sense that it is the author’s own ‘intellectual creation.’” The Intellectual Property Office expanded this definition in the 2022 consultation response, saying an intellectual creation is where “the author has made free and creative choices and the work has their ‘personal touch’” and expresses some form of “original human creativity.” This focus on human involvement in the definition currently excludes AIs from the U.K.’s copyright protections, which the government stated is because the “use of AI is still in its early stages. As such, a proper evaluation of the options is not possible, and any changes could have unintended consequences.”

While the U.K.’s copyright law protects “computer-generated works” — that is, works generated by a computer where there is no human creator — it does not extend any legal rights to the computer that generated the work. According to section 9(3) of the Copyrights, Designs and Patents Act 1988, the “author” of a computer-generated work is defined as “the person by whom the arrangements necessary for the creation of the work are undertaken.” In practice, this generally defaults to granting the copyright to the creator of the computer, the creator of the computer system, or both.

While the Intellectual Property Office in the 2022 consultation response raised a potential option to change legislation in order to recognize AI as an individual inventor, this change is unlikely to be effected. Parliament’s AI Liaison Committee for AI is currently focused on how “the development of AI meets ethical, economic and environmental objectives.”

Prepared by Hillary Woo, Law Library intern, under the supervision of Clare Feikert-Ahalt, Senior Foreign Law Specialist

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