Five minutes with...Ryan Abbott, lead of the Artificial Inventor Project
The author of “ The Reasonable Robot: Artificial Intelligence and the Law” and professor of law and health science at the University of Surrey, Ryan Abbott, spoke to WIPR about this month’s “Dabus” ruling at the English High Court, and how the legal framework constrains artificial intelligence (AI).
What are the biggest challenges facing the IP sector in the era of COVID-19?
I think that rather than creating new IP challenges, COVID-19 has brought attention to longstanding IP challenges. For example, IP plays a key and controversial role in drug development, technology transfer, and access to medicines. Most people who aren’t lawyers working in the life sciences don’t spend a lot of time thinking about these issues. But they’re being discussed more prominently now that the world is in dire need of treatments for COVID-19 and an effective vaccine, as well as in need of manufacturing capabilities to provide care to billions of people all over the world.
You've previously written that an antiquated legal framework constrains AI. Why is that and what can be done?
The law treats AI and human activity very differently, even when they’re acting in interchangeable sorts of ways. For instance, a human cashier and an automated teller in McDonald's do more or less the same thing, but McDonald's has to make national insurance contributions for the person and not the machine, which has the effect of providing an inefficient tax subsidy for automation. With respect to IP, if a machine generates patentable output without a traditional human inventor, under the recent English High Court decision, that cannot receive protection.
I think that discourages the development and use of inventive AI, which is problematic because that activity is likely to lead to widespread social benefit. I talk about several ways in which discriminating between AI and human behavior ultimately leads to harmful outcomes and what we can do to fix this in my book, "The Reasonable Robot: Artificial Intelligence and the Law" (2020).
This month, the English High Court dismissed an appeal by Stephen Thaler to establish Dabus as an inventor but the court did offer a note of caution to the UK Intellectual Property Office (IPO)'s resistance to this concept. What are your thoughts on this?
To me, the English High Court was sympathetic to the need to protect AI-generated works, but suggested it would be more appropriate to deem the AI’s owner as an inventor rather than to list the AI. We argued that would be problematic because we believe the law only allows an “actual deviser” of an invention to be an inventor, because it would allow people to claim credit for work they haven’t done. This devalues the concept of inventorship, and will not notify the public of how an invention was generated.
What do you anticipate will be the next steps in this campaign?
While I can’t speak specifically about this case and the next steps at the present time, our patent applications in multiple jurisdictions which list an AI application as the sole inventor, filed by my Artificial Inventor Project team at the University of Surrey, are active. They are being appealed in a number of jurisdictions worldwide, so I think they have some momentum left.
Aside from which, they have been very successful at one of our major goals, which was to generate discussion about how AI’s impact on IP law and how IP law should change to better achieve its policy goals. We are very pleased to see the IPO has issued a call for views on AI and IP, and referenced the case.
And, as the consultation notes: “The UK hearing officer found that the definition of inventor in the act was pivotal. They commented that there should be a debate on patent law being fit for purpose with the increasing likelihood of AI in the invention process.”
And which jurisdiction is likely to offer the first steps towards advancing the cause of establishing AIs as patent owners?
A few jurisdictions may not have an obvious problem with listing an AI as an inventor. Israel, for example, does not require an inventor to be disclosed in an application at all, and Cyprus and Monaco have reported previously they do not require an inventor to be a natural person. Some jurisdictions have more flexible judicial systems than others, and so I suspect that different jurisdictions will diverge in how they handle the case.
What key developments do you see emerging in life sciences and medical AI in the coming years?
With respect to IP, the value of data is being reinforced as a means of training AI systems based on machine learning, and so I see data protection and IP as being a key issue in coming years, together with longstanding questions about the extent to which one can patent software, or “computer-implemented inventions”. I also think that as AI increasingly augments average workers, it is going to make them more knowledgeable and skillful, and this will raise the standard of the hypothetical person skilled in the art who sets the benchmark for patentability.
Can you tell us about the course of your career?
I’m a physician scientist by training, as well as a US attorney (licenced in California and New York) and a solicitor advocate in England and Wales. Today, I am a professor of law and health sciences at the University of Surrey and an adjunct assistant professor of medicine at the David Geffen School of Medicine at the University of California, Los Angeles.
Have you faced any barriers or challenges in your career?
No shortage of these, but the most recent one was of my own making. We decided to have two additional children at the same time I decided to write my book. In retrospect, this may have been poor timing, and having a one and two-year old at home during a COVID-19 lockdown has proven a tiring, though adorable, challenge.
What is the best part of your job?
It is hard to say, as there are several parts of my job I love. It has been very exciting to spearhead the Artificial Inventor Project (the DABUS applications) because it has involved taking what was previously academic research on AI and IP, and helping to drive forward an international dialogue.
But if I had to settle on one thing, I’d say teaching. My students force me to be at the top of my game, and it is gratifying to see new generations of practitioners grappling with age-old legal issues and then going off to change the world.
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