Posted on February 2, 2018
On February 1, 2017, Foresight Board Chair Phyllis Speser, J.D., Ph.D., R.T.T.P., gave the Keynote Address at the Thai Licensing Executives Society (LES) Annual Meeting. The meeting was focused on the Impact of Industry 4.0 and artificial Intelligence on the practice of intellectual property law in Thailand. The quick take-away from the meeting for Foresight clients was there is a lot of government money in Thailand for R&D, product development, and manufacturing in-county and for establishing subsidiaries or companies there. Equally important, Thailand is a country which strongly respects IP rights.
Dr. Speser has become a leading authority on IP and commercialization throughout Thailand. She is currently consulting as the Senior Advisor to King Mongkut’s University of Technology, Thonburi – a leading Thai university in Bangkok and number 31 globally in industry funding.
In her speech, Dr. Speser explicitly said she would not discuss the ethical issues connected with AI. She would instead explore three impacts of deep convergence and other advanced AI methods on IP itself. She began by exploring how machines got better at pattern recognition and authoring, the way IP law firms file, prosecute, and seek to invalidate patents will change. This change will increase the importance of software technicians in law offices at the expense of IP lawyers and paralegals unless we change our skill mix and the education of legal professionals. Second, she discussed the impact on the value of IP for companies in a world where design around of patents and independent invention of trade secret by smart machines is increasingly easier on the one hand and the rate of invention increases rapidly due the productivity of researchers using smart computers on the other hand. Since the value of IP is partially tied to its ability to grant a de jure or de facto monopoly position over an extended period of time, we should expect IP (other than fundamental patents) to have less value. Third, she explored the impact on IP law itself when machines independently invent. Referencing Naruto v. Slater, the famous copyright dispute that ended by denying protection to a selfie snapped by a monkey on the grounds all the photographer did was set up the equipment and thus the selfie was not an “original intellectual conceptions of the author,” she argued machine-made inventions may be denied patent protection on analogous grounds (setting up a self-learning and training software program and pushing the start button is not invention). Further, it is well established a parent does not own the inventions of their child nor does a patent for manufacturing equipment gives the licensor rights in the product made with the licensed equipment. Underlying both is the assumption people should own the fruits of their labor. Analogous to the former, an inventor might be denied ownership of the independent unpredictable inventions of intelligent software which learns by creating its own neural net training sets or other independent means. It is not their labor which is bearing fruit. It is the labor of the smart machine they gave “birth” to. Analogous to the latter, selling an AI program to a company may not allow asserting rights to what it creates. A license to use does not give ownership to the product of that use. All three cases (the monkey, the parent, the product) raise interesting questions about the implicit role of human created “techne” (intentional technique which creates known outcomes) as the grounding assumption underlying all IP law. We see this assumption in the first patent ever. In ancient Greece, a patent was issued to encourage disclosure of a food recipe (literally the “secret sauce”). The first English patent was to obtain disclosure from a Dutch company to Englishmen of a method of making glass. The issue for IP law is what happens when techne is separated from human intervention and invention – when the machine invents the techne on its own without any meaningful human intervention. It is not yet clear how patent agencies and courts around the world will handle that issue. One path is to use the analogy to the monkey selfie and deny patent rights. The other path is to update the assumption behind patent law to allow granting rights for non-human created IP. The latter, however, may open a new bad of worms concerning who owns the patents of children, students, and apprentices. Not surprisingly, this talk was very well received and repeatedly referenced in discussions over the meeting’s two days.
Above Phyllis Speser is pictured with Alan Adcock- Deputy Director, Intellectual Property at Tilleke & Gibbins and President of LES Thailand, and Wilaiporn Chetanchan- Director, Corporate Technology at the Siam Cement Group, the largest and oldest cement and building material company in Thailand and Southeast Asia. She is one of the founders of LES Thailand.
