Two IPs In A Pod
Brilliant inventions, fresh product designs, iconic brand names and artistic creativity are not only the building blocks of successful business - they deliver a better world for us all. But these valuable forms of intellectual property must be protected in order to flourish. We are the Chartered Institute of Patent Attorneys - the UK's largest intellectual property organisation. Our hosts Lee Davies and Gwilym Roberts chat with entrepreneurs, creatives, patent attorneys and the occasional judge about how patents, trade marks, designs and copyright can improve our lives and solve problems for humanity.
Two IPs In A Pod
Navigating AI Inventorship: Legal Challenges and Global Perspectives with Ryan Abbott
Join Lee and Gwilym as they navigate the complex role of AI in intellectual property with Ryan Abbott, Professor of Law and Health Sciences at University of Surrey. Ryan discusses how jurisdictions worldwide are grappling with AI's potential role as an inventor, highlights the lack of international consensus, and the ongoing debates that define this area of law. Get ready to uncover the intriguing journey of AI-generated inventions, the implications of AI's prowess in fields like drug discovery, and the pressing need for evolving patent law to keep pace.
Lee Davis and Gwilym Roberts are the two IPs in a pod and you are listening to a podcast on intellectual property brought to you by the Chartered Institute of Patent Attorneys.
Speaker 4:Hey Gwilym, how are you? This fine I say fine day it was snowing this morning. I've just walked miles, I'm damp In the snow or just in the rain.
Speaker 2:No, it's just it doesn't. It's warmed up, so it's wet. It's just wet snow aka rain.
Speaker 4:Yeah, no, I came into Waterloo this morning so excited because there were really really thick flurries of snow, and then you lose that excitement, don't you? When it just turns to mush on your coat and you yeah, yeah, yeah. And I thought about jumping on a bus. I jumped on a bus last week and it took a ridiculous amount of time to get out of the office, but I thought I'd be a little bit drier and warmer. But the queue was horrifically long and I thought why are all those people standing there to get on a bus that's going to take them much longer to get to where they want to go than it would walking. And they get, and they're getting wet, and they're getting wet anyway.
Speaker 4:That's especially a consultant in yeah do you want a little bit, little bit news on the seeper front? Yes, so do you know? We've been supported ably over the last couple of years by ria, who always lurks in the background on these calls and does the recording for us and does a big chunk of the editing and all of those kinds of things. Yes, this is her last week. This is her last podcast no, it cannot be, she's on. She's off to past his news. He's off to another membership association. She's leaving me grill him.
Speaker 2:She's leaving me, she's listening, ria, we know you're there we know what you did I don't.
Speaker 4:I don't think we're going to be able to coax her on, not at the start anyway. Maybe we can get her on towards the end. But I think we should say a big, big thank you from the podcast. I mean, we'll obviously say thank you for all of the work that Ria's done for SIPA over the years, but I think we should just say a big, big thank you from the podcast for Ria for supporting us.
Speaker 2:Actually, yeah, we should Absolutely. And to say thank you to, we should say thank you to oh, the people in the background.
Speaker 4:When neil neil comes on occasionally doesn't know what sub for me or you if we're not around. Yeah, we've got emily and opinia and fran, who, fran, of course, started off the podcast, really, in terms of working out the tech for us and doing the editing. But yeah, emily, emily and opinia and fran in the background doing all of the editing and making a sound like we know what we're talking about, which is no mean feat no mean feat, they're all great.
Speaker 2:Thank you everybody.
Speaker 4:Yeah, no thanks to everyone really, yeah, but yeah, sorry to see maria go, but uh, hopefully, hopefully she'll find an amazing new role that she's moving into, so that's cool she doesn't get to do a podcast no I bet she doesn't.
Speaker 4:Yeah, I bet there's no talent. There be no. So, speaking of speaking of talent, should we get the guest on? Yeah, so, occasionally. Occasionally, we have returning guests, which is for a couple of reasons. Is it so? It'll either be because they were so amazing last time that we feel that we need to revisit them and the subject, or that we've just forgotten we've had them on before. So, um, and, and I don't know which, it is with Ryan. Ryan, who are you? Tell us a little bit about yourself.
Speaker 1:This is after the two of you were just telling me how amazing I looked and was, and Gwilym named his recent child after me, so I assumed it was amazingness and I was here for the kind of final real podcast. So I took that as a great mark of honor. But you know, it could also be that we just all have short memories.
Speaker 4:It was, it was a long time ago that we were last together on the podcast. It was May of 21, which was kind of deep, deep, dark pandemic days.
Speaker 1:It all blurs together.
Speaker 4:Yeah, I had a little listen back earlier and we certainly started off talking about the fact that we may never see the real world again and where we confined to our houses for for the duration turns out a couple of years, and we were good yeah, now you can go back to getting wet waiting in a queue yeah, yeah yeah, podcasts are a really good historical document for that, actually, because that people just they're recorded conversations about what was happening.
Speaker 2:I listened to a whole series of a rudely named one, a huge long series, and it started off in the depths of lockdown and it was really interesting listening back to some of the conversations.
Speaker 4:It's a good historical document. I think so Many started then, didn't they? Yeah? Anyway, ryan, can you introduce yourself for the listeners, because we know who you are? They don't, unless they listen to the last podcast, which is unlikely.
Speaker 1:Yes, Well, I'm Ryan Abbott. I'm a professor of law and health sciences at the University of Surrey School of Law and a attorney partner at Brown Harry Smith Conn in the United States, and a mediator and arbitrator with JAMS. And I assume that I'm here for my infamy associated with the Thaler or Davis cases, or just because Willem thinks I'm very handsome.
Speaker 2:It'd be great, but you also know that your knowledge on all that stuff is also super interesting and I think we'll hear some updates, things happening, what's going on All that?
Speaker 4:Yeah, so do you want to give us a potted history of the project, and I know we did it in depth in the last podcast. But let's start off with at least reminding people about the project, and I know since we last spoke it's been tested in a number of jurisdictions with different outcomes.
Speaker 1:Indeed, indeed. Well, I'll give the slightly longer rambling version, and you can interrupt me when it becomes even less interesting. But we go back about 10 years in time and I was working as a baby attorney in the life sciences and noticing in drug discovery that people seem to be doing some interesting things with AI and some vendors kind of the forerunners to AI-generated drug discovery, whatever that is were advertising that they could do things like if we gave them a therapeutic target, they'd have a computer, go through a big antibody library and pick the antibody out that would be best for us and this could be our lead drug candidate. This is a company I was working for and you know we could file a patent on that and that's the foundation of a new drug portfolio. And I thought well, that's interesting because it sounds like an AI is automating. You know at least some of what traditionally makes a human being an inventor, and what would happen if you had an AI invent something? And it turned out people had been thinking about this for a long time. People have been writing about it since at least the 60s and academically saying you know, because at the time only academics took an interest in this, you know you really wouldn't need a patent because an AI doesn't care about getting a patent and patents are to incentivize inventors. And I thought, well, that's not quite right because really all of these inventors assign their patents to the pharmaceutical company anyway. It's the companies that need the patents to hire the inventors and to invest in doing clinical trials and to disclose these things inventors, and to invest in doing clinical trials and to disclose these things. So you'd need a patent just as much. And why wouldn't you want a company using AI and R&D if you could get it to do a better job than a person at something which it wasn't really doing, although it's all very complicated?
Speaker 1:But I wrote some law review articles on it and for the first time, people took an interest in things I was writing and in a couple of years it had gone from. This is vaguely academically interesting to you know, we're kind of concerned about this. Could we pay you a bunch of money to help us think it through? And at some point one of my colleagues said well, why, if this is an issue, aren't there any cases on it? And I said, well, you'd have to really proactively disclose. You had an AI do this. There's a huge incentive not to and you know otherwise, only in litigation in the US, but that's probably going to take a long time.
Speaker 1:So I, you know, assembled a group of patent attorneys to file a couple of test cases for AI-generated inventions. I spoke to Dr Thaler, who I interviewed for the academic work, and said you know, would you be interested in having your AI system generate a couple of inventions or an invention? And he and others had done this previously, again kind of this proof of concept experiments. So he had an AI generate two inventions. While he was at it we filed applications on those of the UK IPO just to, you know, help the British patent attorney milieu. We did this because they did a substantive exam before looking at inventorship. The patents both passed preliminary substantive exam. We filed a form seven and a PCT application and said well, actually these were invented by an AI and the person who owns them is the owner of the AI, on the principle that you own property made by your property. And then we filed it in 17 places and some interesting things happened. I could continue to ramble.
Speaker 4:You carry on rambling. Rambling is good at the moment.
Speaker 1:Ramble away. So in 2021, although again it does all blur together South Africa granted us a patent With the AI listed as the inventor, which again isn't a matter of giving an AI rights. Most inventors don't have rights to their patents, although all of this is very complicated. Plus, an AI is not a legal person that couldn't own property. But it is to be transparent about how an invention is made and with the AI's owner as the owner of the patent. South Africa doesn't do substantive examination, but these have already been substantively examined and they do do formalities examination. So we got a patent there and later that week the enlightened Justice Beach and the Federal Court of Australia issued a 40 something page reasoned decision about why, under the Australian Patent Act, an AI could be an inventor and why at least we had made the best showing of entitlement to that patent. That got overturned at an en banc decision.
Speaker 1:The federal circuit in the US rejected the application on the basis that an inventor is defined as an individual in the patent act, which the Supreme Court has held. Usually means a natural person, we pointed out. Usually they said well, the dictionary says an individual is a person and we pointed out well, the very next sentence says an individual could be a thing, so that doesn't really work. But there you have that. And they said well, if you look through the patent act, it seems to assume an inventor is a natural person. And we said well, the US patent law has this unique provision, or provision anyway, that you can't negate patentability on how something was made, which is what they were effectively doing. And they said well, for the first time we're going to say this applies only to non-obviousness. As a result of that decision, the Supreme Court didn't take the case. The US Patent and Trademark Office amended their guidance from AI nothing to see here in 2019, to a human being has to make a significant contribution to each claim in an invention where the claim is unpatentable and potentially the entire patent. You know, inventorship is uniquely important in the US as a substantive thing which we can come back to talk about. So we have one model there.
Speaker 1:It went up to the UK Supreme Court, which I got to argue, which was great fun, and Americans just asked if I got to wear a wig. I didn't, which was unfortunate, but you'll know that I thought we had a pretty good chance under UK patent law, which basically said the inventor is an actual divisor which is agnostic to entity nature, and that you have to disclose all individual. You know inventors who are natural persons, and we simply submitted that the designation was no one. We could talk more about that case that we lost, although the case is now back at the high court.
Speaker 1:Just a couple months ago, though, we won in Germany at the highest civil court, which resolved a circus split between two appellate German courts one that held these inventions are inherently unpatentable, one that said they are patentable. And the German Supreme Court said all you have to do under German law is have a person cause an invention to be made, and that is sufficient for inventorship. So, on our facts, we had that. So you now have a lack of harmonization about this, although inventorship law is already pretty disharmonized. In Austria and Israel, for example, you don't have to disclose an inventor. In Cyprus and Monaco, which are EPO member states, they've reported EPO that they allow corporations to be inventors, and then in most other jurisdictions the cases kind of very slowly trudge on. That was a pretty good size, ramble Lee, you look like you're checking your email.
Speaker 2:No, not me, Not guilty I was. I was actually just dropping Gwilym a little message in the chat. It's been a roller coaster, that's for sure. When we last spoke was before the Supreme Court, a long time before the Supreme Court, wasn't it? And a lot of things are more up in the air, but I think around then perhaps there were some reversals going on. It's interesting because, I have to say, after the Supreme Court decision, I'm afraid to say Ryan, I thought that the story might be coming to an end, but it clearly isn't. That's great news. Still, it's great news because it's creating huge debate about something we're going to have to face up to in due course yeah, that was, that was a big.
Speaker 1:You know that was one of the three reasons we did this, you know, because this wasn't really on people's radars or if it was, they weren't talking about it.
Speaker 1:You know the law historically kind of lags behind technology to the point where you have problems about this, as for example, right now with, you know, copyright training issues, with machine learning, which is just a hot mess in different places, especially the United States, and I would submit more or less a disaster, because no one seems to have seriously thought about this, you know, before it came up. So you know, part of the goal was that you not have pharma companies losing patents left and right, at least in the United States, over this in a decade and that instead you at least have guidance for stakeholders, and I think the product has been very successful in doing that. It's been named explicitly in all these consultations that AI and IP offices are doing and people have different normative views or statutory views on what the solution should be, but it is, I think, for the best that we're not thinking about it for the first time, once we have kind of widely available inventive AI generating socially useful stuff.
Speaker 4:So you mentioned there, Ryan, about the way that technology runs ahead of the law. Is there a danger that the market ultimately decides and actually this renders the whole system pointless?
Speaker 1:Well, that sounds very European in the framing of it. Right, the idea that the market would decide would horrify our EU colleagues who just passed the EU AI Act, whereas, you know, the American colleagues tend to think that's probably the right solution. I mean, there are, to be sure, a lot of regulatory forces on how AI is used to develop. You know the market, you know soft regulation, you know EU regulations, us regulations, technological constraints on things. You know all of these have an important role to play. You know, and you know IP law generally is a government intervention on a market that we don't believe functions well enough without a government monopoly, a state sanction monopoly. Right, we think we won't have enough of the right sort of activity if we don't have patent law and therefore we have patents which are, you know, by their very nature as anti-competitive, as cool as you can get. So you know again. You know, and then this kind of goes back to what do we want for a system? What do we think the benefits and the costs of having patents are, which aren't necessarily the same for every jurisdiction. Some jurisdictions, like the UK, are big IP exporters. Some are big IP importers. Ai is maybe changing this in interesting sorts of ways. You know, on the copyright front, I realize the audience probably doesn't care about copyright so much, but it is very interesting to leverage for these discussions.
Speaker 1:You know people were historically to leverage for these discussions. You know people were historically when I was writing about this, before the widespread use of LLMs like chat, gtp a couple of years ago, when, you know, ai making art was something that generally academics and a few artists were interested in, you know. But academics thought, oh, this is gonna be awful when you have, you know, google Gemini. Google is going to own all the art in the world, right? Whereas instead what has happened is, you know, they've been platform companies that are, if anything, democratizing the ability to be creative in a way that, you know, people other than music and movie studios didn't have before. And so now I can ask Google Gemini to make a creative image, and it will, and it will be a pretty good one.
Speaker 2:Now I usually find right, and so this is allowing people in jurisdictions that aren't the uk to leverage these technologies in ways that people you know I don't think expected would happen. A long answer, lee. I'm going to dig out a little bit of that, though it's actually quite broad. A picture thing is that I think you're saying in there somewhere that you can't just let the market decide some stuff, because it makes some really bad decisions, and that's when the government steps in, and so this might be one of the areas where the market now might not like it, but the market needs to be looking a bit further forward kind of thing.
Speaker 1:Yeah, I mean, I think that's kind of generally a defense of regulatory activity, and different regulators take different views on whether a market-based or a state-based framework tends to be more appropriate, entirely a state-based mechanism, now subject to global norms through trips, among other things.
Speaker 1:But you know, and so you know, companies have now, in the past five years, tended to take positions on protection of AI generated content and are actively lobbying lawmakers around the world for their preferred solution, and, by and large, most of the attention has focused on copyright, and I think that this is because it's now easy for everyone to see AI generating creative stuff.
Speaker 1:It's also a lot easier to make something creative than something inventive and kind of AI in the creative industry has blossomed as a giant social concern. The creative industry has blossomed as a giant social concern, for example, a motivating factor behind the writer strikes of last year. So a lot of the lobbying is on things that are very pressing right now, like training deep fakes. To a lesser extent, ownership of AI-generated content. The patent stuff remains, I think, niche for industrial engineering and life sciences, where, you know, many companies claim to be making AI generated drugs and there's a vision that AI is going to totally change the way drugs are discovered and used. You know that vision hasn't come to fruition yet, but people are putting large sums of money into it yet, but people are putting large sums of money into it.
Speaker 2:Just closing off, the Davos story you mentioned. It's reappeared in the High Court in the UK. What's?
Speaker 1:happening. Well, a couple of interesting things are happening. I mean, I refuse to give up as a matter of course. Generally right, so that's part of it. Most people would just sort of take the Supreme Court case and be done with it. But no, we don't roll that way. You know, a couple of it should be done, but at this, you know, at the initial hearing, officers said look, uk patent law doesn't protect us. It's all very interesting, but given what you told us about how the invention was made, I can't see how you could get a patent from us. Right, and and a fair position for them to take. But then, before the Supreme Court, they said we could care less. What's on this form, as long as it appears to be a human being, we won't look behind it. And if you'd only put Dr Thaler's name whether it was because he used or owned the AI or he didn't really have to have any involvement in it, that would have been fine for us. So that was a submission they made in oral arguments. And so we amended Form 7 and said, ok, well, if that's your position, here's the new form. And they said, well, not in light of the new Supreme Court jurisprudence. So we are.
Speaker 1:You know our case deliberately took the factual position that you know the AI was the actual advisor of the invention, as it did the thing that would traditionally make a human being an inventor. Now, what that thing is A varies by jurisdiction quite substantially. So the example in Germany it can be I pushed a button. In the US it has to have been a significant contribution to a claim, has to be conception versus reduction to practice In the UK. What does it mean to be an actual advisor exactly, and what does a person have to do versus a machine, and where is the line at which something becomes unpatentable? Now, I think that will kind of be the next subject of cases, Although it is probably, although patent attorneys take different views on this.
Speaker 1:Well, it is certainly less important in the UK because there's limited grounds to challenge inventorship or entitlement. You have to be yourself an entitled party and if you don't, the general view seems to be that if I put my name on this thing and then sued you for infringing it, you couldn't challenge that I wasn't appropriately entitled to it. But some attorneys do think there is some equitable remedy out there somewhere for this. In the US it is something someone can challenge in an infringement proceeding at any point and it can render a patent invalid or unenforceable.
Speaker 1:And so, you know, this is commonly tested in litigation, you know, and when you depose a pharmaceutical researcher who's a listed inventor and she says, well, I use this platform from this company and no, I don't know how it works, but I asked it to generate a new drug and it did, and it said it made a million of them in this, you know, had all kind of the traditional criteria we look for, and I don't know how it predicted that. And you know, it just told me this was the best drug. So I gave it to our patent attorneys and they filed it. You know you would now lose this patent in the United States, but anyway. So back to the high court. So that's thing one. So we are, you know, trying to explore where these lines lay and arguing. You know, fundamentally, if the UK IPO wants to take the position that it doesn't care, which is whether the applications were, whether a divisional filed while the applications were live but after they were eventually deemed withdrawn, is a valid divisional based on the timing of that.
Speaker 2:Let's not do that one today. Can I go back to your point about the UK in particular that we're not that bothered by some mentorship in the sense that, as you said, there's limited opportunities to challenge it? No-transcript. My understanding of his part of his point was that, so you know, no one's challenging it. You said it was who it was. You believed that everything's okay. Um, it was I. I see seeper liked that argument. We actually put a submission to the supreme court, as you know, kind of supporting that, that line of thinking. Um, obviously it didn't come through. But do you think that's the direction that the legislation should go? It's just to keep away from the American prevalence of the invention, as it were, and to keep it between anyone who thinks there might be an invention. Leave everyone else out of it.
Speaker 1:DAVID BASTIAN yeah, I mean it's a good question. It is clearly a broader point than one related to AI-generated inventions. That is, you know, and I think it was actually I just got back from China the AI PPI and that was one of the study questions there on harmonization of disclosure requirements and this sort of thing ventureship. It generally just matters to entitlement and very few people can challenge it. You know, Burse's point was that and also that the UK IPO shouldn't be in the business of verifying these forms. The form was filed. Their job is to process the form. There was a bona fide belief that the form was accurate anyway, but really none of that's the IPO's business. We don't have a concept of fraud on the patent office here. The way that we do in the states and I think first was kind of looking over at america and seeing everyone suing everyone else about everything and thinking we probably don't want that here in the uk. Um, you know that that's probably right. Um, I think it probably is right.
Speaker 1:The other components of this kind of issue and question being you know, what rule do we want to have for this sort of thing? And the UK is kind of interesting, just again to bring copyright into it. They were the first jurisdiction anywhere in 1988 to explicitly change copyright law to say, when you have a traditionally authorless work, we're going to provide protection for computer generated work under the special scheme, and I did think that that was particularly forward looking and future proofing. And granted, people in the 80s apparently thought this needed urgent answering and they were 35 years ahead of their time. But but, on the ai generated issue, it would be nice for parliament to kind of step in and say this is what we want and we want it for good policy reasons and here's the law on it. But I do think also that you know the patent act as it is did have an answer in that, particularly if you looked at it purposefully rather than kind of a a literalist, uh approach to the question so you this is becoming?
Speaker 2:can I call this a passion? Is this a passion? This whole ai thing for your own yeah.
Speaker 1:Yeah, it sounds a little, a little odd. If I'm passionate about ai, that sounds like I have an ai girlfriend. But uh, I don't.
Speaker 2:I'm fishing for that. That's good to know.
Speaker 1:I was going to talk about. Are we still plugging your book? Oh, please, I have a couple of new books but yeah, plug the Reasonable Robot.
Speaker 2:The Reasonable Robot is a really, really good read everybody listening but also I think it's one of the early kind of full discussions about what happens when we start accepting ai as almost as a person, and obviously the book was quite took it beyond ip significantly into. I know, definitely car insurance was an interesting topic and various other things as well, but really interesting. But it feels like that debate has become more mainstream now. There are more discussions about what if, what if? I saw in the US there's one at the moment. The USPTO has got a consultation out about AI and the risk of AI creating loads of prior art. Is this familiar?
Speaker 1:Yes, it is. Yes, it is so the well, you picked up two veins there, but I will remember to something for plugging the reasonable robot and historically you've had a copy of it to wave around or hit Lee with. But I'm sure it's there somewhere, it is not?
Speaker 1:Yeah, that clearly is it Right? So you know, ip agencies and regulators have been thinking about AI and IP for a long time and again, it's always been kind of very academic, largely, you know the UK being a notable example of a different event in copyright. But the USPTO kind of set a new wave of this off in 2019, where they released two requests for comments, and the summary of which was not much to see here, and then kind of a lot of other people got in the mix, like UK IPO. You know they've recently done a 180 on this, as I mentioned, and now they're thinking of all the other interesting ways that AI is going to change IP law and digging into a couple of these, and there really are a lot of them you know with how.
Speaker 1:You know the book broadly dealt with the phenomenon of AI behaving like a person and how the law deals with that. You know whether it's inventing or creating something or setting standards for human behavior, like reasonableness, including in the self-driving car field, you know. But we have kind of reasonableness standards in patent law with the person having ordinary skill in the art. And as you have an AI that starts automating routine R&D activities, you know how does that change standards? You either have an AI represent the person having ordinary skill in the art or the person having ordinary skill in the art is a human researcher using a generative AI system. And you know semantically those are different, but functionally not so much. You know other. You know questions include you can have an AI make a huge amount of stuff. You know is that prior art and is that a problem? And you know in the US you know prior art has to be enabled. So you know, for you know you may have. We've had a company, for example, all prior art that's been working on having an AI make every conceivable sentence for many years. You know a claim has to be one sentence in the US. So you know, if in a database of a quadrillion sentences you have an identical, you know passage, you know or claim, is that prior art? Is it enabled? Is it accessible?
Speaker 1:You know, one of the really interesting areas that I don't work in so much but is AI making design patents or registered designs? Because AI is really good at spitting out variations on industrial designs and those applications are just drawings. So, you know, is AI preempting whole fields of activity and is that a good or a bad thing? And do we want lawmakers to carve out that sort of stuff? My own view on this was, you know, you don't want a two-track system for AI and people. You know, if you have AI making useful prior art, that is something that should be considered prior art. It would be very difficult to deal with otherwise, all the incentives in the right place, but that if you do have this gigantic database, no one could possibly use and has no value and just has sentences that isn't enabled prior art yeah, it's also weird.
Speaker 2:Why would somebody use ai to create loads of prior art? It's just an old concept. They're gonna hope to monetize it, or something.
Speaker 1:Well, for a few things I mean. One is people do deliberately poison the well as a research strategy. So if you aren't planning to patent in a space that you're active in, you might want to release prior art to keep other people from patenting in the space. If you don't want to, you know, enforce patents. You know some people you know have a view of patents as inherently bad and kind of academically want to blanket spaces and publications to prevent, you know, monopolies growing up in the space. Those are kind of two of the big reasons, I think.
Speaker 2:Yeah, it just interests me that it never occurred to me that it would be something that needed legislation but clearly can I chuck one in that.
Speaker 4:So you know that I usually ask the daft question, so let me ask a daft question. Um, so we've been doing quite a lot of work both on the podcast and in conversations around, uh, non-practicing entities. So your patent troll type arrangement If AI gets widespread inventorship, could you foresee a future where AI is used in that kind of aggressive way to just flood the market with patents just for the purposes of litigation?
Speaker 1:Sure, although there's a lot to unpack in that quote, unquote, daft question and I don't think it was terribly daft and I have been sticking pretty patented 30 years. But I assume that is your target market here and we're not too much hitting up the sixth form listeners. I do have a daughter in sixth form who's not listening to this or I'm sure will not listen to this and Well, so there's a kind of different views on whether non-practicing entities or you know the derogative term, patent trolls, are a good or a bad thing for the patent system and whether you know right. So there's all that too Right.
Speaker 1:But you know, yes, this gets to kind of the concern which I kind of mentioned in the copyright space. But let's say you get. You know, ai isn't that great yet, but we've seen how very quickly it improves in creative stuff. Let's say, in five or 10 years you really do have an AI where you can say you know, I'd like a drug to treat this or optimize this design, and it just does it. And it does it extremely well and it is really prolific at doing that sort of thing. And, yes, you would be able to get lots and lots of patents on that activity.
Speaker 1:Now I tend to think that's a good thing because you know, let's say you were able to take a sample of someone's cancer and run it through an AI and the AI can make a personalized antibody to treat your cancer. Right, you know, you could monopolize the field for treating cancer. On the other hand, that means we've now got the cure for cancer. So if AI is spitting out all this really useful stuff at volume, that just means we're getting what the system was intended to do socially valuable stuff. And you know, there is a 20 year kind of limit on how much protection someone can have, and after that, then we all have free access to the cure for cancer in a way that we didn't previously.
Speaker 1:You know someone could, you know, do some you know bad stuff with that? If you had the cure for cancer, you know, only let someone have it in return for a billion dollars, you know, per person. You know are safeguards built into patent law, like compulsory licenses to deal with that sort of thing. But also, again, what we saw in the copyright was a little bit less. One company is going to control the stuff and more platform companies are making this available so that you could potentially use AI to make something inventive. But we will see how it washes out. But yes, as you say, there is a concern someone could try and really dominate certain scientific areas with these technologies.
Speaker 2:RAOUL PAL. I'm going to just touch on something that has been one of the big themes Is this as you say, ai just treats it like it's a person. But also AI is the skilled person which begins to introduce a whole bunch of interesting patenty things. For the non-patent specialist, the skilled person is the nominal, non-inventive but knowledgeable person who never has an inventive thought, who knows how to follow the instructions in a patent document to make it work, and various other kind of tests all sit around this nominal skilled person. And, ryan, I know you had a good think about what it means. If AI becomes a skilled person or if that becomes the test, then that causes all kinds of problems later on because everyone else is basically not a genius. An example, going back to the pharmaceuticals that. So if you suddenly say, well, just because ai did it, um, there's no inventive in in there, um, it just messes, messes things up, um, is this debate still going on about that conflation?
Speaker 1:oh yes, I, I will remark. You seem to look right up at me when you said a person who's ever had an inventive thought. But but Well, messes it up or fixes things Right. So you know we have this bar in patent law, which is we don't want to give a patent for something that you know an average researcher would have come up in the ordinary course of things with, because you know, economically speaking, we didn't really need that incentive for that invention to come about. Right, we only want to reward extraordinary effort.
Speaker 1:You know something that we think wouldn't have been invented but for a patent incentive. You know, or at least a patent incentive significantly sped up the introduction of this invention to society in a trade-off we find worthwhile. Now let's fast forward 10 or 20 years and assume that we have AI that is really vastly more capable than human beings in certain areas like drug discovery. Like you have a disease and you just ask an AI to make a treatment for it and it does, that then becomes routine activity that you don't need a patent to incentivize, and so it probably isn't something that we want to grant the patent for.
Speaker 1:You know, it's something that really anyone could have done, or any average researcher. Now, in this hypothetical future in which AI is outperforming people, you know, yes, it becomes very difficult for an unaided natural person to make an inventive thing, you know. But again, otherwise, you basically have a protectionist system where we are rewarding certain kinds of human effort, even though we could have had an AI do it very cheaply and quickly, just to encourage someone to be an inventor, and I don't think protectionism has really ever been the route to go with dealing with technology. I don't remember if I used this metaphor in the last podcast, so I'll use it again. Well, not metaphor, but example.
Speaker 1:I was in Brazil some years ago and they had elevator attendance in all of the commercial buildings and I asked why that was and they said, well, it was a union thing to give people jobs.
Speaker 1:And that did give people jobs, but it wasn't a very productive use of their labor.
Speaker 1:We could have had elevator panels and they could have been out doing something more productive.
Speaker 1:And you know, as people are struggling with this very much so in the creative industry right now, I don't think the solution is like you have special incentives for people or you ban the use of AI. You know AI will replace certain jobs. It will make other jobs. You know we should have policies that help people who've been rendered technologically unemployed with more benefits and retraining, you know, but that is, have an unlimited amount of wealth and leisure as a society and the goal there is to just keep all of the benefits from flowing to Elon Musk and Sam Altman and making sure that we get some of them. You know, speaking of your kind of future question about you know, ai doing things in the future, sam Altman and Elon Musk say a lot of things, but they also think we're going to have AI that's broadly at the intellectual capabilities of a human being in a couple of years and if they're right about that, that really is a pretty disruptive social concept, but also for patent law.
Speaker 4:So, Ryan, one of my jobs on the podcast is to kind of keep an eye on the clock and you'll either be delighted or terribly frustrated. They will be over 45 minutes now. I've got at least one other question. I don't know whether Gwilym's totally exhausted. Are you exhausted or can I? Should I, because, because mine is a bit of like taking us towards the end question, I don't want to take a stay if you've got more to to ask Gwilym.
Speaker 1:I was going to ask that question about plumbing, but I guess we do that after the podcast at the pub.
Speaker 2:No, go for it, Lee.
Speaker 4:So you were talking kind of like end game there in terms of human level artificial intelligence and what that might mean generally as like a social construct. But what's end game for you, ryan? How long do you keep this going? Is this end game that there ends up being some kind of international harmonization around AI? As an inventor, when'd you step off the roundabout?
Speaker 1:Yeah, no, I think I'm on the roundabout for a good while, which is nice because it means I don't have to think up anything new. This is really the case that just keeps on paying dividends and I just keep writing the same law review over and over and giving the same talk over and over, and this is really sort of the academic stream. But when I first spoke to reporters about this in 2019, when everyone thought this was a ridiculous publicity stunt and you know I no longer get that too much you know the reporters are like so when will this all be done? Six weeks, and I'm like you know, probably at least 10 years and they seemed unable to accept that as an answer. But here we are, five years in, and I think we started kind of the work in 2018. So we're at least halfway through.
Speaker 1:I mean, look, jurisdictions have to decide for themselves what they want their rules to be. I think this case law has really helped stakeholders. It's promoted discussion. It's advanced one view of how things might want to be. It goes down from courts to policymakers to kind of have public debates and discussions about this and then ultimately, yes, the ideal would be that you do want some sort of international harmonization, because it shouldn't matter if you're using AI to make an inventive thing in the uk or the us or china or you know wherever you are. Uh, an invention's an invention, and so you know, hopefully at some point in the next 30 years we'll get something like that, and in the meantime I get to keep appearing on podcasts 30 years, guillem?
Speaker 4:have you got another 30 years in you mate?
Speaker 2:oh, yeah, yeah, yeah, I'm nothing stopping me.
Speaker 4:I'll be nearly 90. No, that's kind of not happening. I won't be here, so I think we're done or thereabouts. Except I know that Gwilym's sitting on a question that you're desperate to ask, aren't you?
Speaker 2:I am. I've just realised I close huh. I'm going to have a closing question. Ask Lily first, then you. Ryan, I've got one today, but I'm going to be surprised if it's the same one we did last time. It doesn't matter, because that was 2020.
Speaker 4:Is it?
Speaker 2:I can't remember what we did last time, so my answer won't be consistent, but it's okay, because then we can basically compare our answers, which are probably going to be different. It's very simple. It's always 42 42. By the way, lee, that's deep thought. Now that's an ai, that was um. So, first of all, um, we've talked lots and lots about ai becoming, you know, treated like a person and replacing the skilled person and all these other driving cars. We've talked about that. But you read the reasonable robots very interesting, um. But um, oh yeah, what your other? What are your other books, ryan? That's what I wanted to ask before I get to my closer, sorry.
Speaker 1:Oh, the Research Handbook on AI and IP by Edward Elgar, and the International Intellectual Property in a World-Integrated Economy by Aspen Publishers. So those books are even more riveting than the Reasonable Robot, one of which is a research handbook and one of which is a textbook. But I'm now working on an encyclopedia of AI and law, so that's going to be the most page turning yet.
Speaker 2:Typical name the Reasonable Robot. You've got to read that, anyway. Closing question AI.
Speaker 4:Lee, what job that you do would you most like AI to do instead? Oh, I guess the obvious answer is none, because I don't like working for a living. That's not true. I quite like getting paid, which is slightly different, isn't it?
Speaker 4:You don't like money, do you? I love my job. I love working with people like you, gwilym, so it's probably something I don't know whether AI would be able to do that I'm not the world's greatest networker. I hate being stuck in a room with a load of people I don't know and being forced to make kind of polite conversation, perhaps with a view to maybe forging one or two connections that might be useful at some point in the future. Can't be doing with it, so if AI could somehow come in and do all of that networking for me and just give me a bunch of perfectly formed connections, that would suit me in the future. Job done.
Speaker 2:I believe that's referred to as neural networking. Thank you. Ryan, did you set that one up, will? No? No, I'm just here, I'm all week. Uh, you, you're on fire. So it's what, ryan, what job that you do would you? Would you prefer ai did?
Speaker 1:but before I give you an answer, and it's an easy one, lead have you guys experimented at all with the google? You know, notebook LM.
Speaker 4:Not, no, what, no, what no.
Speaker 1:Yeah well, so you know, take a paper or something and you drop it in a folder and a Google podcast emerges from this of two kind of emotionally intelligent sounding, human sounding voices debating the subject of this thing. It's basically an automatic podcast generator and it takes about two minutes to make one, but no one would listen to that and replace you two at this job. I'm sure Me grading papers I mean my students use LLMs to write the papers. I should be able to use LLMs to grade the papers, at which point one kind of wonders about the purpose of the whole system. But anyway, I I don't like grading lee, I'll jump in.
Speaker 4:I know you're going to ask me my answer I was going to come back on the grading thing first, because I used to. I I was I was a teacher in further and higher education and I always found it easy just to stand at the top of the stairs and lob papers down the stairs, and the further they flew, the heavier they were, so the higher the grade yeah, I mean.
Speaker 1:Well, to be fair, that is more or less what I do. But it would be even easier to just upload it all to an ai and have it put the numbers in, or or to simulate the stair experiment I'm sure we're really infusing your students as we speak, so um they're not listening, don't worry perfect.
Speaker 4:Yeah, no one does grill them. Come on then. What's yours?
Speaker 2:I'm gonna be festive christmas shopping. I do it all online anyway, just want ai to go and do it.
Speaker 4:It's just innovating, it's innovating do you find that more and more people are using these blooming online list things for christmas shopping? We we do it now with like secret santa at work. Now we do it in our family, where you kind of upload a wish list and someone will buy you a gift. What's the point? What's the point in me telling people things that they can buy me when I can just buy them myself?
Speaker 2:that's a good point, although my family approach is that if you ask for something you you can't have it, so you have to ask for something you don't want and then then you won't get it and you'll get what you might want. It's quite complicated.
Speaker 4:Oh, some subtle kind of psychology going on. I've not really thought about that.
Speaker 2:It's quite messy.
Speaker 1:Well, it sounds better. I'm supposed to guess what people want, and if I guess wrong I get punished.
Speaker 4:So I prefer your list of urges. I don't have enough time in my life to sit down and build an Amazon gift list. It's just not going to happen.
Speaker 2:You're the man who owns everything. Anyway, let's face it.
Speaker 1:Well there you go.
Speaker 4:Yeah, yeah Well, ryan, thank you for coming back and gracing the podcast. Always a pleasure to have you on. Gwilym, thank you for well just being the consummate co-host, as you always are, and thanks to all of our listeners who are now going to rush off and leave us a little review on the podcasting platform of their choice so that other people can find us. Maybe that's something that ai could do for us. Perhaps we could get some kind of ai crawly bot thing, or whatever they're called, to crawl all over the podcasting world and leave lots of reviews about two ips. Thanks both cheers, cheers. We'll see you next time.