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I had the pleasure to be invited to the AI & IP FORUM organised by Forum Heidelberg.

Numerous speakers, from academia and the profession, industry and private practice, were taking part and the whole day was interesting as it gave a good insight to the ins and outs of AI’s influence on the world of IP in general and patents in particular.

The topics discussed were the following

• AI and the evolving landscape of Intellectual Property
• Patenting AI case-law update: US, UK, EP/DE
• Panel discussion: Patenting AI technologies – opportunities and challenges
• Panel discussion: AI’s impact on corporate practices in contracts, collaborations and trade secrets
• IP implications of the AI Act/data privacy
• Panel discussion: Use of AI for IP management
• Panel Discussion: Present issues and the future of AI and IP (navigating the future)

The present recollection is personal and does not claim to be exhaustive or correct in all points as it results from notes taken on the fly. It will also not cover all the topics mentioned above.

AI and the evolving landscape of Intellectual Property

A  lady from the MPI reported on Index report on AI established by the Stanford University. Its key take aways set the picture.  

All industries are touched by AI, the costs for AI go down, the investments in AI are increasing as does the number of applications in the domain. The “hallucinations” which can be generated by AI systems were also mentioned.  

The question of protection of AI and the concurring problems of the protection offered to AI inventions were also broached. It appears clearly that an AI system cannot invent on its own and that an inventor has to be a natural person, cf. Dabus/Thaler.

Some board decisions were also presented: T 1425/21, T 1193/23, commented on the present blog and T 206/22.  

The USPTO seems to have recently published a set of Guidelines on patenting AI inventions.

AlphaFold, see IPKat,  on protein folding was mentioned as an apparent key achievement in AI. AlphaFold has been subject to a patent application WO2022/112248=EP4 200 854, for which the EPO established the ISR and the IPER. The examination is ongoing at the EPO.

The EU-AI act and its current status were also presented. The whole difficultiy appears to lie in the Code of Pratice which is not yet finalised. There is apparently still a lot of work to be done. Explanations about the risk-based approach in the EU-AI Act were convincing. The Info Soc. Directive and the GDPR were also mentioned.

A quote from Broussard M. and others was given by in which it was regretted that the term AI had in fact been chosen incorrectly. Todays AI “is merely complex and beautiful mathematics”.

Patenting AI case-law update and Panel discussion on Patenting AI technologies – opportunities and challenges

EP/DE

A DE/EPO lady representative considered that grants in the domain increased, but that the boards of appeal of the EPO appeared to be too restrictive in the matter as they stick on the technicity in the application, cf. Comvik.

Some case law was also mentioned: T 1669/21, T 161/18, T 1191/19, T 702/20, T 1998/22, T 1952/21, T1425/21.

As far as training of AI systems is concerned, a decision from the Hamburg Regional Court was quoted (310 O 227/23) was mentioned.  

There was a need for a common understanding and a balance to be found between the divulgation of the AI training data and the requirement of sufficiency. Some other forms of protection could be needed for AI inventions.

A distinction was made between Applied AI which is non-technical and Core AI which is technical. The influence of OSI models was also mentioned.

UK

The Aerotel decision was mentioned. According this decision it is not enough to have “any machine” to escape the exclusion.  This decision is in clear contrast with EPO case law, cf. T 154/04.

There will be a discussion in a British Court towards the end of this month and it could well be that the UK takes a different path than the continent when it comes to patenting AI. The discussion when too quickly to be able to take notes.

US

Alice was still the leading decision, but a new tendency is emerging.

The USPTO has issued inventorship guidance and examples for AI-inventions, according to which an claim for an AI is not purely abstract. Some US patents were also mentioned, inter alia, US 9 106 609 and US 6 307 576.

There are a series of law suits gong on in the USA, with a clear emphasis on copyright problems when using AI.

Panel Discussion

In the following panel discussion, the chairman of board 3.5.06 reminded that there CII are only excluded as such and that it was not possible to make a distinction between CII and AI. The distinction between technical/non-technical was not only to the disadvantage of applicants. Any technical effect has to be achieved in the real world. G 1/19 is the leading decision in the field.

The interveners from the profession or the industry insisted on a more realistic approach and the technical effect should not be the only aspect, but also what the AI achieves. What happens if AI is a mere layer in a system?  Training with AI should actually be patentable as well.

Patent offices have the tendency to only grant AI patents which have an impact on the real world. AI should also not be considered as a mere black box.

As AI inventions are rather short lived, the necessity of a protection for 20 years was questioned. A shorter protection could be envisaged, or even a mere declaratory system, where examination only occurs in case of litigation.

Panel discussion: AI’s impact on corporate practices in contracts, collaborations and trade secrets

That AI can also have a dear impact in contracts between an AI developer and its customers.

One important point is the respect of the GDPR.

It is also important to decide were the AI data is stored. On the client or server or on the server of the AI provider?

One aspect which appeared important is how to deal with the staff so that is does not migrate to competitors with its knowledge. One way is to treat staff well, so that do not have the desire to migrate. Another way is to block any attempt to download information, especially before a staff member leaves the company.

One thing is however clear: a staff member cannot take with him information on any form of support, but it is impossible to control what it takes with him in his head.

Once it appears that trade secrets have migrated, it is in general too late. The information is lost to third parties and even legal action will not allow to recover the lost information.  

Use of AI in IP management

This was also a very important part of the conference.

Interestingly, it appears that AI is used in industries having in-house patent departments, but not in private practice.

Classical AI systems were becoming better and better, but they were still not exempt of hallucinations. It appears necessary that the output of an AI system is checked by a human being.  

In a number of companies, the use of AI in IP management appears quite advanced. It was considered that the use of AI increased the productivity of staff in IP departments.

It is used not only for drafting applications and claims, but also for replying to office actions.

It appeared however necessary to properly train people in the use of AI.  The AI as such is important, but also the way of questioning the AI system, the “prompts”, need careful and continuous training.  In some companies people were encouraged when using AI to even develop their own code.  

One industry representative went even as far as to allege that claim drafting was merely “repetitive”, so that AI could well be used for drafting claims.

That AI can be used for scheduling jobs does not come as a surprise, but confidentiality in using a general purpose AI can be a matter of concern.

In spite of using AI, it was also stressed that time should be given to people to get acquainted by the system. AI should not be used by newcomers as they have to learn from their mistakes.  

Present issues and the future of AI and IP

The general view was that patents are useful in protecting AI, but other, for instance shorter, forms of protection could well be envisaged. It could even go as far as issuing defensive publications instead of patents. Trade secrets are also a possibility, especially for smaller actors in the field.

Training data are valuable data, and it does not appear to exist any compensation for the divulgation of training data.

One big challenge remains the inventorship of AI inventions.

It was also criticised that the approach to AI inventions is not uniform among examiners at the EPO. The number of clarity objections appears to be on the rise and the standard of disclosure required by the EPO is not sufficiently clear.  

FTO and enforcement of AI patents are also not straightforward.

More surveys like that of the Stanford University were needed.

As far as the link between AI and copyright is concerned, it seems that governments are rather dithering.

Comments

My thanks go to Jean-Claude Alexandre Ho from Forum Heidelberg for inviting me to this event.

My conclusion is that AI is actually a hype. We previously had big hypes like with “big data” or biotech. We may well see that the hype on AI falls like the preceding hypes. At least it is one way of getting money from governments.

To be cynical, one could consider AI as being clearly artificial and by no means intelligent. For the time being it just spits out what it has been told to do.

AI is certainly useful when it comes to automatising repetitive tasks, like for example analysing X-rays. Here exists a direct link with the real world, cf. G 1/19. Without any relation with the real world and proper sufficiency of disclosure, e.g. by disclosing the training data, it does not appear possible to get patents at the EPO.

If claim drafting is as repetitive as I have heard from an industry representative, then the logo of the EPO should be changed immediately.

As it is not possible to know how the data are aggregated in the system, an AI will, at least presently, not be in a position of defining the common general knowledge going back to the effective date of a claim.

It should also not be forgotten that the output of an AI system is not better than its training data and the subsequently entered data. There is also no guarantee on how the result is achieved, hence the necessity of protection like the EU-AI act, which should come as soon as possible.

This act is criticised on both sides of the Atlantic, but in view of the risks inherent to the use of AI, regulation appears to be an absolute necessity. What is technically possible is not necessarily good for society at large. I remind here about the EU regulations prohibiting the use of human embryos.

If, as we have heard during the conference that in IP, the output of an AI system is to be checked by a human being, what about outside IP?

Creating sui generis rights for AI appears not a good or viable solution, I take for example the protection of semi-conductor topographies. After a big hype in the mid-eighties, ending with the Washington Treaty on Intellectual Property in Respect of Integrated Circuits (IPIC) under the auspices of WIPO and the Directive 87/54/EEC, has anybody ever heard what happened to it?

Last but not least, I have heard from the developer of SIRI, that AI needs much more energy than a search with available search tools like “Bing” or the like. No wonder that Microsoft wants to refurbish a decommissioned nuclear power plant to supply energy to its AI servers. Meta want to even to build a series of nucler power plants to supply energy to its AI servers. In time of global Earth warming, do we need even more energy to be used in order to nurture tools which for lots of people are no more than a black box.

In view of the basic laws of thermodynamics the cooling of AI servers necessarily goes on a par with heating of the atmosphere. It is a fallacy to think that only the reduction of CO2 emissions by using nuclear power plants will reduce global warming.