The World Intellectual Property Organization (“WIPO”) recently announced a public consultation process on Artificial Intelligence and Intellectual Property Policy. As part of the consultation process, WIPO concurrently published and has requested feedback on a wide-ranging draft IP Policy and AI Issues Paper that is intended to help define the most pressing AI-related questions likely to face IP policy makers in the areas of patents, copyright, and data.

The Issues Paper follows other recent WIPO activity pertaining to AI-related IP issues. In January 2019 WIPO issued a publication that surveyed the landscape of AI innovation since the field first developed in the 1950s, and in September 2019 WIPO held a Conversation on IP and AI.

Recognizing the significance and potential implications of the intersection of AI and intellectual property, two of the leading patent offices have now requested public comment. As discussed in a previous blog, the U.S. Patent and Trademark Office issued a “Request for Comments on Patenting Artificial Intelligence Inventions” on August 27, 2019. The USPTO subsequently issued a “Request for Comments on Intellectual Property Protection for Artificial Intelligence Innovation” on October 30, 2019, in which it seeks comments on the copyright, trademark, and other intellectual property rights issues that may be impacted by AI.

Scope of and Reasons for the WIPO Issues Paper

The Issues Paper identifies six general areas for discussion:

  • Patents
  • Copyright
  • Data
  • Designs
  • Technology Gap and Capacity Building, and
  • Accountability for IP Administrative Decisions

For Patents, there are five specific issues that pertain to:

  • Inventorship and ownership, including whether the law should permit or require a patent applicant to name an AI (software) application as the inventor, or whether the law should require that a human being be named as the inventor.
  • Patentable subject matter and patentability guidelines, including whether the law should exclude from patent eligibility inventions that are autonomously generated by an AI application.
  • The standard applied for assessing whether there is an inventive step or non-obviousness, including whether the standard of a person skilled in the art should be maintained where the invention is autonomously generated by an AI application.
  • Disclosure requirements that will sufficiently enable a person skilled in the relevant art to reproduce the invention, including the issues that AI-assisted or AI-generated inventions present for the disclosure requirement.
  • General policy considerations for the patent system, including whether consideration should be given to a sui generis system of IP rights for AI-generated inventions in order to adjust innovation incentives for AI.

The Issues Paper should be consulted for further details on the five Patent issues and the questions posed under each issue. Similarly, there are one or more specific issues identified and related questions posed for the areas of Copyright, Data, Designs, Technology Gap and Capacity Building, and Accountability for IP Administrative Decisions. The Issues Paper identifies a total of thirteen (13) specific issues across the six general areas.

At this time, WIPO is not requiring answers to the identified questions. By contrast, the USPTO’s August 27, 2019 and October 30, 2019 Requests for Comments sought “answers” to the questions respectively posed therein.

WIPO is instead requesting comments on the correct identification of the issues, and if there are any missing issues in order to formulate a shared understanding of the main questions to be discussed in connection with the identified issues. It thus appears that WIPO is essentially seeking input on whether it has properly identified the thirteen issues set forth in the Issues Paper.

Interested parties can submit comments to [email protected] by February 14, 2020. WIPO will publish comments on the WIPO website, and revise the Issues Paper in the light of comments received. The revised Issues Paper will then form the basis of the Second Session of the WIPO Conversation on IP and AI that is scheduled to be held in May 2020.

Takeaways

WIPO is taking a deliberate approach in formulating its IP policy in relation to AI by having requested comments in connection with the issues that it has identified, apart from any answers to the questions it has posed in connection with those issues. By ensuring that issues are first appropriately identified, questions can then be formulated and addressed with respect to WIPO policy objectives and considerations.

In the near term, comments received by WIPO may influence the upcoming revised Issues Paper and the Second Session of the WIPO Conversation on IP and AI. WIPO may also possibly consider comments, for example, in connection with a multiplicity of longer term substantive patent law regulations and policies. Patent applicants and other stakeholders should consider submitting comments to WIPO, and monitoring WIPO’s ongoing activities and developments that pertain to intellectual property policy and artificial intelligence.