Artificial intelligence (AI) is driving innovation across sectors from healthcare to finance to transport and entertainment. However, the UK’s patent system appears to be struggling to keep pace with these rapid advances.
As the innovation landscape evolves, this article will explore why the UK patent system needs an overhaul to better accommodate AI-related innovations and foster a more conducive environment for technological progress.
The global artificial intelligence market size is expected to grow twenty-fold between 2021 and 2030, from around USD 100 billion in 2021 to nearly USD 2 trillion in 2030 (Statistics 2023).
In order to position the UK as a global centre for AI and data-driven innovation, it is important to ensure that the UK can provide the best environment for the development and commercialisation of AI technologies.
Ambiguity in patent law
Despite the strong commercial drivers behind obtaining patent protection, innovative AI technologies often struggle to meet the patentability criteria under the current UK framework.
The UK patent system dates back to the 15th century, making it one of the oldest in the world. Today, the UK patent system is governed by the Patents Act 1977. This legislation was designed primarily to protect ‘traditional’ technologies, often involving physical products or processes.
For an invention to be patentable, it must be new, involve an inventive step and be capable of industrial application. However, UK patent law, in line with the European Patent Convention and other jurisdictions, also explicitly excludes “mathematical methods” and “computer programs”. as such” of patentability.
These exclusions have fuelled a misconception that AI technologies – and computer-implemented technologies in general – are not patentable in the UK. This is not the case, and many technical implementations of these technologies are indeed patentable. However, the ambiguity surrounding what constitutes a patentable AI invention presents challenges.
The UK Intellectual Property Office and the courts have taken a cautious approach, often interpreting the exclusions in a way that makes it difficult to grant AI-related patents. For example, while an AI invention that applies a technical solution to a technical problem may be patentable, the line between what is considered a “technical” solution and what is merely a mathematical method, an abstract idea, a business method or a simple computer program is difficult to discern. as suchis often more difficult to distinguish.
Indeed, this ambiguity poses problems for the UKIPO itself. On 19 July 2024, the Court of Appeal overturned the High Court’s first instance decision in the case Controller General of Patents, Designs and Trademarks v. Emotional Perception AI.
The case primarily concerned the patentability of artificial neural networks. In response to the decision, the UKIPO suspended its guidance on examining patent applications relating to artificial intelligence.
It remains to be seen whether the UKIPO’s practice will now revert to that of before the first instance decision last November, but the recent decision is widely seen as having reversed one of the few routes in the UK to patent artificial neural networks.
This legal controversy and ambiguity creates uncertainty for inventors and companies developing AI technologies.
In the absence of clear guidance, businesses and investors may be reluctant to invest in AI research and development in the UK, choosing to develop and patent their AI technologies in jurisdictions with more favourable patent regimes, such as the US or China.
Competitive disadvantage
Countries around the world are recognizing the need to adapt their patent systems to better accommodate AI-related inventions. China is actively seeking to dominate AI, particularly in the area of intellectual property. The Chinese government has implemented policies to encourage AI-related patenting and has granted patents for AI-related inventions at a much higher rate than anywhere else in the world.
As of December 2022, Chinese multinational Baidu was the largest owner of active machine learning and AI patent families in the world. American technology company IBM ranked fifth (Statista 2024).
The rapid evolution of AI technologies presents both opportunities and challenges for the UK. In a world where technological prowess is increasingly linked to economic and geopolitical influence, failure to foster an environment conducive to AI innovation could have long-term consequences for the UK’s competitiveness.
An outdated patent system out of step with the needs of modern technology could deter AI researchers and companies from operating in the UK, potentially leading to a brain drain and loss of investment.
An overhaul of the UK patent system is urgently needed to address these issues. By clarifying the criteria for patenting AI inventions, aligning with international best practice, and adopting innovation-friendly policies, the UK can create a more conducive environment for AI innovation. Such reforms would not only benefit AI developers, but would also position the UK as a leader in the global AI landscape, ensuring it remains at the forefront of technological progress in the years to come.
