Collaborative approach critical to establishing global IP guidelines on AI  

The U.S. Patent and Trademark Office’s newly released Artificial Intelligence Strategy emphasised the need for stronger international collaboration on AI-related intellectual property issues, reflecting a broader push for global harmonisation of AI laws. A high priority issue is adapting the legal regimes, which are designed to incentivise innovation and protect intellectual property, to the realities of AI-related and AI-assisted inventions.

Across jurisdictions, patent offices have always sat within their own legal environments. When it comes to rapidly evolving technology such as AI that is not limited to the patent office of any one country, establishing the right approach to protecting this technology can be challenging—and global collaboration is essential. 

“For AI related inventions and AI-assisted inventions, global harmonisation is absolutely critical, because AI now impacts globally across the entire technology landscape. Establishing guidelines for this area needs an internationally collaborative approach,” said Griffith Hack Special Counsel Anthony Selleck. 

Collaboration so far 

There have been prior cross-jurisdictional efforts to influence global harmonisation of AI policy. The International Association for the Protection of Intellectual Property’s IT and Internet Committee releases periodic reports and recommendations which consider areas such as AI, offering recommendations with the distinct purpose of influencing the harmonisation of policy across jurisdictions. Smart & Biggar Principal Bhupinder Randhawa sits on this committee, and notes the DABUS case as a key example of the necessity of harmonisation. 

“One thing that’s been consistent in Canada and the US, the UK, New Zealand and Australia is that each of them ruled that because a human had not been named as an inventor, they could not proceed with the patent application. South Africa was the sole exception, likely on the basis that the applicant had acquired the right to file a patent application from DABUS, which is an AI tool designed to make inventions. However, there is some doubt amongst South African patent attorneys as to whether the decision to register the patent is correct,” said Randhawa. 

It is important to note that while IP Australia ultimately decided against allowing AI to be listed as inventor, its initial decision was to allow this patent claim – the first court to acknowledge AI as inventor—though short lived.  

It seems that general understandings of AI remain consistent across offices.  

“I think the other thing that you’re finding is relatively consistent is that the offices are trying to ensure that trivial inventions or trivial applications of AI don’t get patented – but they are taking different approaches which can lead to inconsistent results,” Randhawa adds. 

Critical – but challenging 

The road to collaboration is not without its challenges. Even if countries agree on a legislative formula, that is subject to interpretation by each country’s courts in accordance with their own legal traditions. Those interpretations must then be followed by the patent office. Patent offices are held accountable to the contexts of their nation’s broader legislation and court cases.  

“At the level of broad principles, many nations are harmonised, but in practice it can be difficult because of different legal regimes, and the influence of courts—how courts operate, how they construe legislation, and how executive agencies put those decisions into effect. Different countries have different issues to face, so implementing something across all jurisdictions without any consideration to local issues can be difficult as well,” said Selleck. 

Though challenging, neglecting collaboration has potentially detrimental consequences.  

“If you have a jurisdiction that doesn’t grant patents, or grants only very narrow patents, that might become a haven for infringers, and for competitors to building their technologies in those places, and subsequently provide services all over the world, circumventing the patents in other countries,” said Randhawa. 

“In terms of giving credible rights for AI innovations, jurisdictions need to cooperate.”