Artificial Intelligence (AI) is changing the way we think of intellectual property (IP) law. Is Australia’s legislation equipped to handle widespread AI innovations and inventions?
Australia enjoys some of the world’s most robust intellectual property law. Local regulations allow creators, inventors and innovators to turn their ideas into valuable commercial solutions. These hold immense value, so it’s important for legislators to prevent AI from disrupting the protection that has already been afforded to IP holders.
But the cornerstone of our current legislation revolves around human inventors. So what happens when computer systems are able to develop novel concepts with little – or even no input – from humans?
It’s a question that’s being asked all over the world at the moment. Is intellectual property law ready for artificial intelligence? There’s no simple answer to this question, but we’re going to discuss how IP law relates to AI, and what’s being done to ensure legislation keeps up with changes in technology.
AI relates to intellectual property in dozens of ways. These are the our three major areas of concern for the immediate future of the industry:
Like other software and hardware systems, AI platforms will be eligible for protection under Australia’s IP law. In most cases, the current IP law is suitable for protecting new AI systems.
As with computer-related patents, AI platforms will only be patentable if they include a new and novel technical advancement. For instance, you may be able to patent a new AI tool that improves how information is processed and displayed on a computer, of, how a computer operates.
As a general rule of thumb, new AI platforms will need to innovate “how” the computer handles a process, rather than using the computer in a normal manner to bring about an action.
IP rights for AI-generated creations are currently a grey area.
Under the legislation in Australia, there are no specific provisions for whether or not AI-generated creations can be protected with patents, trade marks, design rights or copyright.
Currently, inventions that are created by AI (or with the assistance of AI) can be granted normal IP protection if there is novelty, utility, and it is for appropriate subject matter. As we recently saw in the DABUS decision, it is also necessary for a human to be listed as an inventor.
AI tools are being used all over the world to streamline legislative processes. With AI, it’s possible to rapidly analyse documentation, search for information and generate responses with great accuracy.
We have seen an increase in people using AI to perform novelty searching for their invention. This can be a great starting point, but results are typically inadequate.
Furthermore, ownership of input ideas (including those that may be novel) is unclear. For example, if you search your novel idea in ChatGPT, this may be used by ChatGPT (instead of you) or, may form a public disclosure. We’re here to help if you have disclosed your invention before protecting it, just reach out to our team as soon as possible!
It’s likely that AI will be used to identify gaps in the market and generate content and inventions. For example, searches such as “what are problems with excavator buckets and repair of excavator buckets”, may be useful in identifying market pain points for inventors to consider and resolve.
Encouraging invention is beneficial to us all, but these types of tools also have the potential to poorly advise applicants and make seeking later intellectual property protection difficult.
We believe the current legislation is poorly equipped to keep up with developments in AI. Until now, AI tools have been niche products in industries such as pharmaceuticals (for high throughput screening), and their use hasn’t caused an issue for Australia’s IP laws.
But what happens as AI tools become more widespread? How does the system cope when a user with no industry experience can use AI to generate a novel invention and automatically file a patent application with IP Australia?
These are some of the questions that IP Australia has set out to answer during a recent discovery process.
One of the main concerns raised by IP Australia is the use of generative AI to flood the system and prevent others from obtaining patents and designs in particular industries. For example, generative AI could be used to publish thousands of variants of a particular product design, making it difficult to obtain new design rights for similar products.
This process has been referred to as defensive publishing, or patent trolling, and it poses a genuine risk under our current legislation.
While there are no concrete answers yet, it’s good to see IP Australia being proactive and acknowledging the risks that AI may pose to inventors and our IP system.
The answer to this question is still unclear. The sudden emergence of AI has put Australia’s IP legislation on the backfoot, but existing rulings are enough to help us manage the transition.
We are happy to see that IP Australia is already taking steps to integrate AI into the current framework. While this will require lots of work and iteration over the coming decades, it will allow inventors to make the most of their skills without discounting the usefulness of AI.
One of the main challenges we’re encountering with AI is that there are no solid answers. IP Australia is trying to catch up with developments in Artificial Intelligence, but it’s likely to take years before our system reflects the real-world landscape.
For now, if you have created an invention using AI, or if you are looking to protect a newly developed AI tool, the team at Kings can help!
Kings is an independent intellectual property firm based in Brisbane. Our attorneys have vast experience in technological innovations, so we are uniquely positioned to manage IP applications involving AI.
When developing and managing your intellectual property, we consider how AI was used, current legislation and upcoming legislative changes. This ensures you receive the best protection possible and that you’re able to commercially exploit your work to the fullest extent.
Contact us today for more information, or book a confidential consultation to see how we can help.
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