IP Trends in 2022 – AI and IP: International Regulatory Landscape

In our previous blog post on IP considerations for AI, we looked at whether an AI system, its input and output are subject to IP protection. Considering that there is a child of uncertainties around how AI should be treated under the legislation.

Legislative and regulatory initiatives

Although the IP implications of AI specifically have been addressed. By contrast, the various IP offices already reflect some of the challenges posed by AI in their guidelines and already use AI assisted tools themselves. Considering the ongoing discussions – and the legal uncertainties – further regulatory action seems likely.

In October 2020, the European Parliament adopted a resolution on intellectual property rights for the development of AI technologies. However, this (non-binding) resolution is not yet specific in specific proposals. The EU’s proposed AI Regulation does not specifically address IP related issues.

However, regional IP offices are much more active in tackling this issue:

European Patent Office (EPO)

AI has been on the radar of EPO for quite some time, both with respect to the use of AI as a tool for the EPO itself but also with respect to questions on inventorship and patentability. The EPO has considered the emergence of AI in patent applications by refining its approach to patentability of inventions involving AI.

European Union Intellectual Property Office (EUIPO)

Like the EPO, the EUIPO is involved in various stakeholder dialogues and also – in the course of the EUIPO’s digital transformation programs – implementing AI tools, eg for its image search.

USA

In the US, there is currently no federal regulation on AI, but it is clearly the front of mind for regulators such as the Federal Trade Commission (FTC), the Food and Drug Administration (FDA) and the Department of Commerce (DoC). Similar to the EU’s proposed AI Regulation, IP matters do not appear, however, to be the main focus of the discussions.

By contrast, the United States Patent and Trademark Office (USPTO) has been considering this issue for some time. It has also conducted a broad stakeholder dialogue on AI and IP policy, the public views of which are summarized in a comprehensive report.

UK

The UK Intellectual Property Office (UKIPO) has recently developed a consultation on AI and has proposed several policy options ranging from maintaining the status quo to implementing significant new provisions on AI (eg related copyright protected works or protecting AI-devised inventions with a new kind of right). This followed the UK government’s call for views. It remains to be seen on the legislator’s radar.

Globally

In 2019, the World Intellectual Property Organization (WIPO) launched a conversation on IP and AI, which has provided a comprehensive stakeholder dialogue, with several sessions already held.

It is also noteworthy that the five largest IP offices (the EPO, USPTO, Japan Patent Office (JPO), Korean Intellectual Property Office (KIPO), and China National Intellectual Property Administration (CNIPA)) have decided to advance their co-operation in the WIPO to coordinate their initiatives. This is particularly relevant to the employment of AI tools and systems by the offices themselves, applying the patentability requirements to inventors in the field of AI and handling applications for inventions created by machines.

Conclusion

AI users should monitor the various stakeholder dialogues and regulatory proposals to anticipate any significant changes relevant to their business in time. In addition, they should consider the various guidelines issues.

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