In Thaler v Comptroller-General of Patents, Designs and Trade Marks  UKSC 49, the UK Supreme Court ruled that AI cannot be an ‘inventor’ for the purposes of UK patent law. The ruling concludes a series of appeals from Dr Stephen Thaler and his collaborators, who argued that an AI system called ‘DABUS’ should be named as the inventor of two new inventions generated autonomously by it relating to food and beverage packaging and light beacons. This was part of a series of test cases, which have had limited success globally, seeking to establish that AI systems can make inventions and that the owners of such systems can apply for and secure the grant of patents for those inventions. The judgment noted that the broader questions of whether an invention generated autonomously by AI ought to be patentable, or whether the meaning of the term ‘inventor’ should be expanded to include machines powered by AI, were matters of policy that would need to be addressed by legislation.
The UK Supreme Court made three main findings.
- DABUS is not an ‘inventor’ under the Patents Act 1977 (“Patents Act”)
- An ‘inventor’ within the meaning of the Patents Act must be a natural person (a human being). Since DABUS is a machine, not a natural person, it cannot be an ‘inventor.’
- It was not Dr Thaler’s case that he was the inventor and had simply used DABUS as a highly sophisticated tool. Had Dr Thaler made that case and named himself as the inventor, the Court noted that its decision might have been different, but it was not the Court’s place to determine that question.
- Dr Thaler was not entitled to apply for and obtain a patent simply by virtue of his ownership of DABUS
- Dr Thaler sought to rely on the doctrine of accession whereby the owner of existing property would own new property generated by that existing property (in the same way that a farmer owns the cow and also the calf). The Court held that this only applies to tangible property and not to intangible inventions. For this reason, title to the invention cannot pass as a matter of law from the machine that generated it to the owner of that machine. This argument also assumes that DABUS itself can be an inventor within the meaning of the Patents Act, which, as the court had already established, it cannot.
- By failing to satisfy the requirements of the Patents Act, the two patent applications must be taken to have been withdrawn
- Because Dr Thaler had failed to name an inventor and had failed to state a valid right to apply for and obtain the patents, the UK Intellectual Property Office had been correct to find that Dr Thaler’s two patent applications would be taken to be withdrawn at the expiry of the 16-month period prescribed by UK patent law for this purpose.
Dr Thaler’s UK patent applications were part of a project involving parallel applications to patent offices around the world. The UK Supreme Court’s ruling is unsurprising and follows similar decisions in the United States and Europe.
The ruling raises significant issues for the AI industry, but it is important to focus on what it confirms: that inventors must be natural persons for the purposes of UK patent law. The judgment does not impact the patentability of AI-generated inventions as it does not necessarily preclude a person from securing a patent, provided that a human being is named the inventor.
On 1 and 2 November 2023, world leaders, politicians, computer scientists and tech executives attended the global AI Safety Summit at Bletchley Park in the UK. Key political attendees included US Vice President Kamala Harris, European Commission President Ursula von der Leyen, UN Secretary-General António Guterres, and UK Prime Minister Rishi Sunak. Industry leaders also attended, including Elon Musk, Google DeepMind CEO Demis Hassabis, OpenAI CEO Sam Altman, Amazon Web Services CEO Adam Selipsky, and Microsoft president Brad Smith.
Day 1: The Bletchley Declaration
On the first day of the summit, 28 countries and the EU signed the Bletchley Declaration (“Declaration”). The Declaration establishes an internationally shared understanding of the risks and opportunities of AI and the need for sustainable technological development to protect human rights and to foster public trust and confidence in AI systems. In addition to the EU, signatories include the UK, the US and, significantly, China. Nevertheless, there are notable absences, most obviously, Russia.
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On 19 September 2023, the UK Parliament passed the Online Safety Bill (“OSB”). The OSB aims to protect individuals from illegal online content and focuses on the protection of children by requiring the removal of content that is legal but harmful to children. For example, social media platforms will be required to act rapidly to prevent children from viewing illegal material, or content that is harmful to them, such as pornography, online bullying, and the promotion of suicide, self-harm or eating disorders. The definition of illegal content covers content that is already unlawful under existing legislation, such as terrorism, hate speech and child sexual exploitation, and introduces new offences relating to more recent online phenomena such as revenge pornography, and ‘upskirting’ and ‘downblousing’ images. This is one of the most significant pieces of UK legislation post-Brexit and shows a distinctly UK approach to online harms, which businesses operating globally will need to comply with. This will need to be reviewed in parallel with the EU Digital Services Act, which has similar goals in making Europe a safe online environment.
A date for Royal Assent (when the OSB will become law) is expected shortly. The OSB’s wide scope makes it likely to result in implementation problems and potential challenges resulting from the impact the OSB is likely to have on freedom of expression and personal privacy. The underlying principles of the OSB are very different to those familiar with US laws and the constitutional protections for free speech. The risks of non-compliance will be significant, with extremely high potential fines of up to 10% of a company’s global revenue.
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On August 1, 2022, the Court of Justice of the European Union (CJEU) issued an opinion regarding a Lithuanian data protection case that may signal an expansion of interpretation of the definition of sensitive personal data under the EU’s General Data Protection Regulation (GDPR). Specifically, the CJEU found that data indirectly disclosing sexual orientation constitutes sensitive personal data.
At issue was a Lithuanian law that requires the Chief Official Ethics Commission of Lithuania to publish information about the private interests of public officials in an effort to combat corruption. In the facts underlying the case, a Lithuanian official objected to the Chief Official Ethics Commission’s online publication of his private interest information, which included his spouse’s name. The CJEU concluded that the publication of such information was prohibited by the GDPR because it was “liable to disclose indirectly the sexual orientation of a natural person,” a type of special category of personal data generally prohibited from processing under GDPR Article 9 (processing of special categories of personal data) unless certain additional conditions are satisfied such as the data subject’s explicit consent, or that processing is necessary for reasons of substantial public interest.
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The UK government has recently published proposals to amend UK data protection legislation with moves towards divergence from EU rules and regulation following the UK’s decision to leave the EU (“Brexit”). The Data Protection and Digital Information Bill (“DPDI Bill”) proposes to make significant changes to existing UK data protection legislation, including the UK General Data protection Regulation (“UK GDPR”) and the Data Protection Act 2018 (“DPA”). The proposals include some measures that will result in a significant divergence, particularly for companies operating on a pan-European basis. While some compliance obligations will be relaxed, most of the changes can best be described as “similar but different” in approach. It remains to be seen what the final text will look like when the bill is passed into law, with some of the more radical proposals already having been dropped from consideration. A crucial point of consideration for UK legislators when the DPDI Bill is making its way through the various stages of the legislative process in the Houses of Parliament will be whether this legislation remains sufficiently similar to the EU’s General Data Protection Regulation (“EU GDPR”) that the UK is able to retain its adequacy status for the purposes of exports of personal data from the EU to the UK by companies operating internationally.
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In February 2022, Executive Order 14024 highlighted that Russia’s invasion of Ukraine threatened not only Ukraine but also the national security and foreign policy of the United States. Pursuant to this executive order, and in the face of national security concerns, the U.S. Department of Treasury’s Office of Foreign Assets Control (OFAC) has instituted extensive sanctions, including both economic and trade sanctions. Also, in response to the national security concerns, the Cybersecurity and Infrastructure Security Agency (CISA) issued a Shields Up notice, urging companies to bolster their cybersecurity to protect themselves against the threat of a cyberattack.
As the conflict between Russia and Ukraine continues, the threat of a cyberattack, specifically ransomware and NotPetya-style attacks, remains top of mind. However, as entities continue to bolster their cybersecurity and protect themselves against these attacks, they should be cognizant of the implications that OFAC sanctions may have in connection with such an attack.
Continue reading “Ransomware Payments Become an Even Riskier Choice Amidst the Ever-Growing Sanctions List”