Artificial Intelligence and Intellectual Property

At the end of 2020, the Intellectual Property Office (IPO) issued a call for evidence about the implications of artificial intelligence (AI) for intellectual property (IP) legislation. There are many considerations about AI in this area, particularly where an AI model is producing an output or IP base which is not necessarily attributable to any human creator. The case of DABUS was a first step in this direction, where Dr. Stephen Thaler attempted to make an AI model the patent holder. The UKIPO eventually rejected this application because an inventor must be a “natural person”. The case is just one demonstration of where legal, regulatory and technical complexities need to be worked out where AI is involved. The call for evidence sought views regarding patents, copyright and related rights, designs, trademarks, and trade secrets. Future Care Capital believes that preserving patient safety is of paramount importance where AI is being developed for health and social care. In the response, we focus on trade secret laws and AI, drawing on examples from healthcare to demonstrate considerations where exceptions to trade secret law should be maintained, namely where patient and clinical safety is of the greatest importance. The IPO set out the context of trade secret law and AI in its initial call for views. We recommended taking inspiration from, and improving on, the drug approval processes currently in place in the UK.

We recommended the following approaches related to AI and UK trade secret law in healthcare:

1. Work with AI developers, the healthcare industry, and its regulators, to develop adequate protection for trade secrets, while preserving patient safety.
2. Draw on existing approaches to drug discovery and market entry when considering AI in healthcare.
3. Communicate clearly with developers to address concerns over revealing trade secrets for the purpose of regulatory approval.

Read our full response here or download a copy of the response below.

Read the response from the IPO and other submissions here.