Item of Interest – Artificial Intelligence and IP

Robotics and Artificial Intelligence (AI) are breakthrough, boundary-pushing innovations.  For most people, the word “robot” conjures up images of humanoid robots.  In reality, these are only a small subset of the robotics industry with robots taking on many different forms dependent on the task they have to complete.  For example, think of the long-armed robots of the car-manufacturing plants or the circular floor-cleaning robots, neither of which resemble a human figure.

So, what exactly is a robot?  There are various definitions including, for example:

  • “any automatically operated machine that replaces human effort”;[1]
  • “an actuated mechanism programmable in two or more axes with a degree of autonomy, moving within its environment to perform intended tasks”;[2] or
  • “any machine capable of sensing its environment and reacting to that environment based on an independent decision-making capability”.[3]

Whatever definition one uses, what is clear is that a robot has the ability to interpret its environment and adjust its actions to achieve a goal.[4]  Fully-autonomous systems can operate and make “decisions” to accomplish a task without any human interaction.

It is artificial intelligence (AI) which allows robots to function in this way.  Colloquially, the term “artificial intelligence” is applied when a machine (such as a robot) mimics ‘cognitive’ functions that humans associate with human minds, such as ‘learning’ and ‘problem solving’.  In very general terms, AI allows the machine or robot to learn from a set of rules and based on those rules problem solve to complete a particular task.  Therefore, any job which is primarily rule-based could one day be completed by a machine.  Conversely, at this time, any job which involves empathy or collaboration remains out of reach of the machine.

So what role does intellectual property play in the field of robotics?

Traditionally patents provided a means of protecting robotics inventions.  However, the patentability and novelty of computer-related inventions (such as AI) is now a matter of debate in many countries.  For example, s 11(1) of the New Zealand Patents Act 2013 states that a computer program is not an invention and not a manner of manufacture for the purposes of the Act.  So, the mere execution of a method within a computer does not allow the method to be patented because the actual contribution lies solely in the invention being a computer program.  But where the actual contribution achieved by a computer program is a new and improved way of operating a machine, then the claim involves an invention that may be patented (the machine when using the new and improved way of completing a task).

Due to the debate surrounding the patentability of computer-related inventions, trade secrets are now increasingly being relied on as a means of protection.  This is particularly the case where the technological complexity of robotic systems means that reverse-engineering is not possible.  Commercialization of robotics is also often a lengthy and expensive process, meaning that even if costly patent protection is obtained, the patent may expire before the products are market-ready so that the benefits to be obtained from having patent protection are not realised.

As the field of robotics moves out of factories and into applications with direct consumer contact, strong brands and trade mark protection of those brands is becoming increasingly critical.  People are inherently drawn to brands that they recognize as trustworthy and leaders in their field.  Likewise, design protection plays an important role in helping firms protect the ornamental features of their robot innovations.[5]  And copyright protection for software code that has been “reduced to writing” and is believed to be unique and original is increasingly being relied on to prevent others from copying, or simply accessing, computer code.[6]

So, where patents once dominated as the go-to form of IP protection in the field of robotics, other forms of IP are now becoming the go-to.

But two questions remain – can IP be created by AI?  If yes, who owns the IP created?

The above discussion is directed at human-generated computer software to create the AI that powers the robot.  Yet there remains the possibility that one day, robots set to accomplish a task may produce new solutions to a problem.  In so doing, they may, in theory, create physical or intangible products or outputs that could be perceived as new (for example, new inventions, creative works or trade marks).  Currently under the New Zealand and Australian legal frameworks, the robot (or AI) cannot be recognized as an ‘inventor’.  However, other countries, such as Japan and the Republic of Korea, are considering extending rights to machines.[7]

Will robots one day be recognized as inventors and owners of IP in their own right?  Bicentennial Man comes to mind.

[1]              Definition from Encyclopedia Britannica.

[2]              Definition according to the International Federation of Robotics (IFR).

[3]              Definition according to the majority of practitioners and scholars, see Springer (2013) at 1-5.

[4]              C. Andrew Keisner, Julio Raffo and Sacha Wunsch-Vincent; Economic Research Working Paper No. 30, “Breakthrough technologies – Robotics, Innovation and Intellectual Property”, Nov 2015, at 4 (http://www.wipo.int/edocs/pubdocs/en/wipo_pub_econstat_wp_30.pdf).

[5]              Ibid, at page 33.

[6]              Ibid, at page 34.

[7]              Ibid, at page 35.

 

By Victoria Arglye