Category: Artificial Intelligence

WIPO AI-Based Brand Search Database

On the 1st of April, the World Intellectual Property Organisation (WIPO) announced the launch of its new artificial intelligence (AI)-based image search tool for searching trade marks and brands.

This new tool makes it even easier for small business owners to make meaningful trade mark searches, for example, to determine the registrability of a new mark and to make strategic decisions about expanding their brand into new markets and geographies.

The AI search technology has been integrated into the WIPO Global Brand Database, which is available for free at this link:

https://www.wipo.int/reference/en/branddb/

There are also useful video tutorials on this page to help you get started.

 

Principles of Trademark Identity and Similarity

The purpose of a trade mark is to act as a “badge of origin”, distinguishing your goods and services from those of other businesses within your industry.  They serve to minimise consumer confusion and protect the consumer from deception.

Two of the tests which may lead to the refusal or successful opposition of a registered trade mark are whether the signs are identical or are similar to other existing marks.

An identical mark reproduces, without any modification or addition, all the elements that make up another mark.  When viewed in their entirety, any differences between the two marks would go unnoticed by the average consumer, such that they are effectively indistinguishable.

Marks are considered similar when, based upon the overall impression they give, their visual, aural and conceptual features are such that there is a high chance that the average consumer would be confused by the two marks.  They would unable to easily distinguish which mark was which, and hence which business or brand was associated with either of the two marks.

A trade mark search can help begin to address these questions.  When appropriately placed in the context of the relevant goods and services your business intends to operate in, as well as the goods and services of the owners of the marks your search finds, it can help ensure a suitable mark is chosen that is distinctive for your business.

 

Benefits of the New Search System

Image search technology has progressed massively over recent years and utilises a variety of methods to find and retrieve images.  These include text-based indexing of filenames and metadata, as well as basic image analysis.

Within the trade mark searching space, previous image search engines would often determine similarity between trade mark images by identifying and comparing factual parameters such as shapes and colours.

Artificial intelligence takes this type of image search to a new level.  AI is developing rapidly and becoming more and more engrained in every aspect of life, society and business, in areas as diverse as healthcare, retail, manufacturing and sport.  WIPO is now applying AI to many of their offerings, including trade mark searching.

In their brand search database, WIPO’s new AI-based technology improves on existing image search technology by using deep machine learning to identify combinations of concepts, rather than relying solely upon the more factual aspects of an image.

The result is a search engine that greatly improves the ability of individuals and businesses to conduct effective, basic trade mark searches as part of their brand development and marketing strategies.

Alistair Curson

 

References

Bainbridge D. (2012). Intellectual Property, 9th edn, Pearson Education Limited, Harlow, England.

LTJ Diffusion v Sadas Vertbaudet SA [2003] FSR 34.

New Zealand Trade Marks Act 2002, s25. Retrieved May 11, 2019, from: http://legislation.govt.nz/act/public/2002/0049/latest/DLM164474.html

Sabel BV v Puma AG, Rudolf Dassler Sport [1998] RPC 199.

SAS. “Artificial Intelligence: What It Is and Why It Matters”. Retrieved May 12, 2019, from: https://www.sas.com/en_nz/insights/analytics/what-is-artificial-intelligence.html

Si S. (2019, March 23). “The Best Visual Search Engines You Can Use On Your Browser”. Retrieved May 12, 2019, from: https://seo-hacker.com/visual-search-engines-browser/

Smith M. (2012, January 12). “How Image Search Engines Work”. Retrieved May 12, 2019, from: https://www.makeuseof.com/tag/image-search-engines-work-makeuseof-explains/

United Kingdom Trade Marks Act 1994, s5. Retrieved May 11, 2019, from: https://www.legislation.gov.uk/ukpga/1994/26/section/5

World Intellectual Property Organisation. (2019, April 01). “WIPO Launches State-of-the-Art Artificial Intelligence-Based Image Search Tool for Brands”. Retrieved May 10, 2019, from: https://www.wipo.int/pressroom/en/articles/2019/article_0005.html

Artificial Intelligence and Innovation

Artificial intelligence (AI) is a rapidly developing field and technology space that has the potential to affect and disrupt innovation and business.  It even has the potential to generate new innovations itself.  In this post, I want to explore the capacity of AI to create innovations and how the current intellectual property landscape might view such creations.

What is Intellectual Property?

Intellectual property (IP) refers to the output of creative effort, i.e. “intellect”.  It is also, in law, a category of “property”, that can be owned, bought, sold, licensed and mortgaged.  IP is property that legally protects, particularly in the field of commerce, the creations of intellect as well as commercial reputation and goodwill.

Creators are able to earn recognition and / or financial benefit from what they invent or originate.  The law seeks to maintain a balance between the interests of those creators and the wider public interest.  The goal is to support an environment where innovation and creativity are encouraged and can thrive.

IP is often referred to in the context of human intellect or creations of the human mind.  However, as AI advances, at what point do we consider the creative effort of this type of intelligence and how does it fit into the current IP framework?

What is Artificial Intelligence?

Artificial intelligence (AI) describes intelligence within machines.  It is based on the premise that human intelligence can be defined in such a way that it can be mimicked by a machine.  Such machines are programmed to “think” like a human; to process data, learn, rationalise and solve problems; and to respond in ways that a human might.

Various levels of AI are often considered.  At one end of the spectrum are the purely reactive systems which respond solely to current experiences or input, and don’t capture or store memories or experiences for future reference.  At the other end are the self-aware systems, which perceive their own internal states, and can make inferences and formulate ideas.  In between are a range of systems with greater or lesser abilities to store and process information, make decisions, perform actions, and interact with people.

AI works by taking and combining vast amounts of data, iteratively processing the information at high speed, and progressively learning automatically from patterns and features it finds within the data.  It automates the learning process to manage quantities of data, as well as levels of analysis and accuracy, that a single human would find challenging, enabling it to get more out of the data.  However, it still requires a human to set up the system and ask the right question.

Applications of AI

As AI technology continues to grow and develop, it is finding applications in a wide range of everyday activities.  For example, in the healthcare space AI is being applied in the field of personalised medicine, as well as providing interactive personal healthcare assistants.  In retail its applications range from personalised shopping to stock management and designing the layout of retail space.  AI is used to optimise factory operations in manufacturing, and in sport it has a place in analysing images to help coaches improve the game played by their teams.

It’s important to remember that AI is not intended to replace people.  Rather its place is to augment our abilities and make us better, and we should work with it with that goal in mind.  AI adds a new layer of intelligence to existing systems.  For example, AI can improve upon existing analytical technologies, as well as bring analytics to industries and fields where such capability doesn’t exist or is underutilised.  It could improve our human abilities (e.g. vision, understanding and memory), and make us better at what we do.  Socially, it can break down barriers, such as economic and language barriers, leading to improved exchange and growth.

Potential for AI to Create IP

What is the potential for artificial intelligence to create intellectual property?  I want to consider two types of IP rights – patents and copyright.

Patents protect inventions – products and processes that are novel, inventive and capable of industrial application.  Could AI create an invention that satisfies these qualifications, and thus itself be considered an inventor?

Copyright protects works – an original literary, dramatic, musical or artistic piece; sound recording, film or broadcast; or typographical arrangement.  Could AI originate a work (fixed in a tangible medium) that qualifies as one of these subject matters, and thus itself be considered an author?

AI as the Inventor of a Patentable Invention

Under the New Zealand Patents Act 2013, an invention is defined as novel if it does not form part of the prior art base.  I discuss above how some levels of AI are defined by their ability to solve problems.  In this context, if an artificial intelligence creates something new, that qualifies as patentable subject matter, and that cannot be found in the prior art base (i.e. is not in the public domain), then the condition for novelty would likely be satisfied.

Similarly, for usefulness (“a specific, credible, and substantial utility” – New Zealand Patents Act 2013) or industrial applicability (“can be made or used in any kind of industry, including agriculture” – UK Patents Act 1977), it is likely that an invention created by AI could meet this criterium also.

Inventive step, on the other hand, is potentially a more subjective determination, despite established legal precedent as to its interpretation.  Under the New Zealand Patents Act 2013, an invention “involves an inventive step if it is not obvious to a person skilled in the art, having regard to any matter which forms part of the prior art base”.  This would likely be tested by evaluation of persons skilled in the art.  Assuming no bias was introduced by the witnesses knowing the inventor was an artificial intelligence, this test too could potentially be passed.

By these arguments, it is conceivable that an artificial intelligence could create an invention that met the criteria for patentability.  However, would such an AI be accepted as and consider an inventor?

Under the New Zealand Patents Act 2013, “a patent may only be granted to a person” who meets certain criteria with respect to the inventor of an invention.  Depending upon the definition of a person under New Zealand law, AI may not qualify as an inventor here.

The UK Patents Act 1977 is a little more interesting.  It states that “a patent for an invention may be granted primarily to the inventor” and defines an inventor as “the actual deviser of the invention”.  There may be scope for this to interpreted as the inventor not necessarily being a person.

These two examples highlight the jurisdictional variation that one is likely to encounter when exploring this question.  However, it does suggest that in certain jurisdictions AI may qualify as an inventor, even if clarification as to the interpretation of the relevant legislation might need to be sought.  The question of subsequent ownership of AI-inventions is one I’ll leave for a separate blog post.

AI as the Author of a Work in Which Copyright Subsists

Under the New Zealand Copyright Act 1994, a clear description of the works in which copyright would subsist are defined, as is the requirement for the works to be recorded.  Further, they should not be a copy of another work.  Taking these requirements alone, should an artificial intelligence independently (without copying) create and record one of the defined works, then there is an argument for it being the originator of the work, but would it be considered the author?

The New Zealand Copyright Act 1994 states “the author of a work is the person who creates it”.  Similarly, the UK Copyright, Designs and Patents Act 1988 sees the author as the “person” who creates the work.  Further, it defines the author of computer-generated literary, dramatic, musical or artistic works as “the person by whom the arrangements necessary for the creation of the work are undertaken”.  Examination of these two jurisdictions would indicate that AI is unlikely to be accepted as the author of a copyright-protected work.

It has been argued however (in relation to the UK Copyright, Designs and Patents Act 1988) that when this legislation was drafted there was a direct relationship or link between the input to a computer programme and the consequent output.  One of the functions of AI (as discussed above) is to analyse larger and sometimes unexpected sources of data than a human could thereby generating more complex and otherwise unpredictable outputs.  This opens the door to discussion as to the true nature of creativity.

Existing case law in the US and Germany for example also establishes precedent for copyright to subsist only in works created by humans.  However, as the complexity of AI and its abilities develop, it is not inconceivable for future precedent where AI becomes accepted as the originator of copyright-protected works.

Conclusion

The current definitions of AI are many and complex, and these may well develop and expand in the future.  There appears already to be scope for certain IP rights to be legitimately recognised as created by AI.  In the future, our legislative framework may move towards recognising the creative abilities of AI even further.

I haven’t touched upon ownership of the relevant IP rights here, but I do think this needs to be part of the overall discussion, in particular within the context of the motivations behind IP rights and their protection – the incentive of rewarding creators for the fruits of their creations, protecting investment and thus incentivising innovation.

Fitting this into the framework of IP legislation is likely to prove challenging.  Beyond who or what created the IP, the ownership and enforcement of the rights is a key part of the equation.  With AI-created innovations will those incentives remain and if so, in what form?  Maybe society will need a new form of IP right or rights to recognise and manage those innovations created by AI.  I do think that AI will continue to develop and become more and more integrated into society and our lives.  It will inevitably become a source of creativity and the progression of intellectual effort and this will need to be managed.

Alistair Curson

 

References:

Bainbridge D. (2012). Intellectual Property, 9th edn, Pearson Education Limited, Harlow, England.

Bakry MF, He Z. (2015, March 5). “Autonomous Creation – Creation by Robots: Who Owns the IP Rights?”. Retrieved November 29, 2018, from: https://law.maastrichtuniversity.nl/ipkm/autonomous-creation-creation-by-robots-who-owns-the-ip-rights/

Chisling A. “Enter the Dawn of Artificial Intelligence and Intellectual Property”. Retrieved November 29, 2018, from: https://rossintelligence.com/ai-ip/

Desai A. (2017, October 7). “What are the Types of Artificial Intelligence”. Retrieved November 28, 2018, from: https://www.quora.com/What-are-the-types-of-artificial-intelligence

Investopedia. “Artificial Intelligence – AI”. Retrieved November 28, 2018, from: https://www.investopedia.com/terms/a/artificial-intelligence-ai.asp

Macaulay T. (2018, January 26). “Legal Issues Around IP For AI: Who Owns the Copyright on Content Created by Machines”. Retrieved November 29, 2018, from: https://www.techworld.com/data/ip-rights-for-ai-who-owns-copyright-on-content-created-by-machines-3671082/

Medeiros M, Sanft J. (2018, January). “Artificial Intelligence and Intellectual Property Considerations”. Retrieved November 29, 2018, from: https://www.financierworldwide.com/artificial-intelligence-and-intellectual-property-considerations/#.W_9RtWgzaHt

Menon N. “Who Owns the Content Created by an AI? Patent and Copyright Privileges”. Retrieved November 29, 2018, from: https://www.worldaishow.com/ai-patent-and-copyright-privileges/

New Zealand Copyright Act 1994, s5. Retrieved January 4, 2019, from: http://www.legislation.govt.nz/act/public/1994/0143/latest/DLM345899.html

New Zealand Copyright Act 1994, s14. Retrieved January 4, 2019, from: http://www.legislation.govt.nz/act/public/1994/0143/latest/DLM345921.html

New Zealand Copyright Act 1994, s15. Retrieved January 4, 2019, from: http://www.legislation.govt.nz/act/public/1994/0143/latest/DLM345922.html

New Zealand Patents Act 2013, s6. Retrieved December 6, 2018, from: http://www.legislation.govt.nz/act/public/2013/0068/52.0/DLM1419206.html

New Zealand Patents Act 2013, s7. Retrieved December 6, 2018, from: http://www.legislation.govt.nz/act/public/2013/0068/52.0/DLM1419208.html

New Zealand Patents Act 2013, s10. Retrieved December 6, 2018, from: http://www.legislation.govt.nz/act/public/2013/0068/52.0/DLM1419217.html

New Zealand Patents Act 2013, s22. Retrieved December 6, 2018, from: http://www.legislation.govt.nz/act/public/2013/0068/52.0/DLM1419242.html

Penner MD. Vanderveken M. (2018, June 27). “Could the Creations of Artificial Intelligence Be Entitled to Intellectual Property Protection? Part 1: Could Artificial Intelligence be Considered an Inventor?”. Retrieved November 29, 2018, from: https://www.fasken.com/en/knowledgehub/2018/06/could-the-creations-of-artificial-intelligence-be-entitled-to-intellectual-property-protection

Penner MD. Vanderveken M. (2018, July 10). “Could the Creations of Artificial Intelligence Be Entitled to Intellectual Property Protection? Part 2: Can Artificial Intelligence be an Author According to Copyright?”. Retrieved November 29, 2018, from: https://www.fasken.com/en/knowledgehub/2018/07/can-ai-be-an-author-according-to-copyright

SAS. “Artificial Intelligence: What It Is and Why It Matters”. Retrieved November 28, 2018, from: https://www.sas.com/en_nz/insights/analytics/what-is-artificial-intelligence.html

United Kingdom Copyright, Designs and Patents Act 1988, s9. Retrieved January 4, 2019, from: https://www.legislation.gov.uk/ukpga/1988/48/section/9

United Kingdom Patents Act 1977, s4. Retrieved December 6, 2018, from: https://www.legislation.gov.uk/ukpga/1977/37/section/4

United Kingdom Patents Act 1977, s7. Retrieved December 6, 2018, from: https://www.legislation.gov.uk/ukpga/1977/37/section/7

Wikipedia. (2018, November 23). “Intellectual Property”. Retrieved November 28, 2018, from: https://en.wikipedia.org/wiki/Intellectual_property

World Intellectual Property Organisation. “What is Intellectual Property?”. Retrieved November 28, 2018, from: https://www.wipo.int/about-ip/en/