Computer says no - AI given powers in Australian draft IP legislation

Computer says no - AI given powers in Australian draft IP legislation

We were very intrigued recently when our friend at the UKIPO, James Porter, alerted us to an interesting part of some draft legislation in Australia.

In short, the legislation would give the power to make decisions on behalf of the patent office (specifically the ‘Registrar’) to a computer program: ‘The Registrar may arrange for the use… of computer programs for any purposes for which the Registrar may, or must, under this Act or the regulations: make a decision;…’

What this will mean in practice, should the legislation be passed, remains to be seen: whether it could involve a computer handing out extensions of time or even deciding that an inventive step argument isn’t quite up to scratch. But it’s the first serious step we’ve seen towards giving a computer program real power in the patenting process.

This change could pave the way for faster decision making, something which would be appreciated by applicants and attorneys alike, but it is undoubtedly important that such decision making is supervised. Thankfully, there is a proviso in the draft wording that the Registrar can substitute the decision made by the computer program if they think it is incorrect. There is a question, though, as to whether the computer program can then decide that that decision is incorrect…

This demonstrates the serious thought required when handing over power to computer programs. The wording of the legislation may well change before it comes into force but the starting point is an interesting one. Who knows how far away we are from a fully automated IP system in which computers are inventing, patenting their own inventions and then preventing us from using them? Maybe one day they will even be able to write articles highlighting the transition of power from man to machine beginning with a change in Australian legislation…

The full wording of the draft legislation (see section 135A in particular) can be found here.

If you have any questions or require further information, please do not hesitate to contact Gwilym Roberts and Amy Auger, or your usual Kilburn & Strode advisor.

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