30 Oct 2019

Is it time for the "Petty Patent" model for AI?

Following recent comments from Supreme Court Justice Lord Kitchen, that current IP law is lagging behind advances in AI technology, Saiful Khan, partner and IP expert in electronics and computing at Potter Clarkson, asks, is it time for the UK to introduce a new category of short-term patent to help stimulate greater innovation from technology companies?

By Tom Dent-Spargo

bearsky23 / Shutterstock.com


Across the world, AI patent activity is significantly increasing, with a recent report from the UK Intellectual Property Office (UKIPO) revealing that, globally, over 30,000 AI patent applications were published in 2017 – a 400 percent increase over the last decade. The figures complement those of the inaugural “Technology Trends” study by the World Intellectual Property Office (WIPO) at the start of the year, which revealed that there were more than 340,000 AI-related patent applications and 1.6 million scientific papers published since AI first emerged in the 1950s, with the majority of all AI-related patent filings published since 2013.  

This volume, both in the UK and globally, shows that this fast-moving technology has unlocked a huge amount of innovation, reaffirming the global importance of AI. In the UKIPO report, filing activity within the UK is encouraging, more than doubling over the past decade.  UK-based applicants and inventors rank sixth overall in terms of absolute filing activity – with the US and China dominating. And, despite the UK not being a leading territory for absolute numbers of AI-related patent applications filed, relative filing activity is competitive. Over 1% of all patent applications filed with the UKIPO are now considered to relate to AI.

In keeping with the UK Government’s mission to advance the UK AI sector, all signs from the UKIPO report point to the UK remaining a key market. The findings also provide a strong indication of the need for IP strategies to have international focus in order to best commercialise AI inventions.

However, this rapid surge in AI inventions means that, as Supreme Court Justice Lord Kitchen suggested, the law regarding the patenting of AI could still be playing catch-up. He said, “The law may be a little way behind the technology at this stage. But time and time again law makers have met challenges such as these. Now is the time to do so for AI.”

So, even against this positive backdrop for UK AI, what more could be done to accelerate innovation?

Given the pace at which AI is increasingly impacting upon daily life, from an IP perspective, and while the current the legal framework remains mostly understood and predictable, clear and contemporary guidance is appreciated. Furthermore, it could be time for alternative models to be considered. 

One of the answers could be for the UK to introduce a new, shorter-term patent model, which is often known as a “petty patent”. More than 50 countries – including France, Germany, the US, Japan and China, some of the most active territories identified in the UKIPO report – have a shorter-term patent option in place. 

In contrast to a traditional patent, “petty patent” models are not only a shorter-term option, they are a more cost-effective way of protecting innovation. While the UKIPO has relatively low costs around filing patent applications, the petty patent could be an even more commercially-attractive option.

A petty patent typically provides protection for a shorter period than a patent – between seven and ten years. In a fast-evolving sector such as AI technology – where inventions can be relatively short-lived – a 20-year patent may not be the most suitable or cost-effective option. The registration process is also simpler and quicker, taking six months on average.

In addition, the requirements for allowability of a petty patent, which are also known as “utility models” or “innovation patents”, are less stringent than in “traditional” patents. In particular, while inventions still need to be novel, the inventive step requirements are usually lower or non-existent, depending on the country.

Arguably, this could help encourage further innovation if companies knew there was a shorter-term and more cost-effective option to protect their inventions. It could be the commercial cushion they are looking for to justify the cost of their research and development endeavours.

With the UK being home to several high-profile companies and research hubs developing AI – DeepMind and the Cambridge technology cluster being two such examples – there is real opportunity for the UK to be a leader in AI innovation. The UKIPO report shows that the UK bucks global trends in several technology areas, in particular, transport, speech recognition, image processing and audio-visual technology, which continue to see growth in contrast to global trends.

While the above areas are not mutually exclusive – the development of autonomous vehicles, for example, being involved with image processing to an extent – it appears that the UK’s strengths in AI commercialisation are becoming clearer, which will be worth tracking in future studies.

So, while the recent studies from UKIPO and WIPO show the future for patenting AI in the UK looks bright, the time may have come for the UK to consider introducing a new, shorter-term, commercially-viable patent model to further accelerate AI innovation.


related topics