Slw319 Intellectual Property Law Assessment Answers Sample Sheffield

Introduction of SLW319

In the contemporary economies, patent law is a key pillar to intellectual property protection. Patent systems attempt to promote technological innovation by giving the inventor exclusive rights to their invention but at the same time, knowledge will ultimately be shared among the population. The legal regime of patents in United Kingdom is mainly controlled by Patents Act, 1977 which defines legal provisions governing the patentable inventions, inventorship, and patent rights.

Historically, there are a number of theoretical justifications of the patent law. These are the theory of incentives, which states that patents would motivate people to invest in creating something new; the theory of rewards, which acknowledges the intellectual labour of the inventors; and the theory of disclosure, which suggests that the publication of patents would stimulate the release of technical knowledge.2 But the advent of artificial intelligence (AI) technologies has posed some serious problems to these more established explanations.

The artificial intelligence systems are becoming more and more able to come up with new technical solutions, even with little human participation. Due to the development of AI technologies, there is a concern that the usual arguments about the need to protect patents are convincing. More specifically, AI questions the fact that inventions are a product of human ingenuity and creativity. The essay is a critical critique of the classical arguments supporting the protection of patents and a discussion of whether it holds true in the modern context of artificial intelligence.

Traditional Justifications for Patents

A number of theoretical reasons have historically underpinned the existence of patent systems, the reasons why governments should extend to give exclusive rights to inventors.

Incentive Theory

Incentive theory is the most common justification theory on patent protection. According to this theory, patents can be used to stimulate innovation because it gives an inventor a chance to make money out of his invention. Research and development can cost a lot of money and the absence of a patent can make competitors dupe inventions without necessarily spending these investments.

The economic incentive to invest in innovation is provided by patent systems which offer the inventor a short-lived monopoly which prevents other individuals and firms to undertake the same action. The patent system is thus aimed at balancing two opposing interests: to promote innovation and, in the long run, to make the knowledge technology a part of the common pool.

This role of incentive has been acknowledged by courts in a number of cases. In Catnic Components Ltd v Hill and Smith Ltd, the house of Lords stressed that the patent law is in place to preserve true innovation in technology and to stimulate more technological advancement.

Nevertheless, the emergence of the artificial intelligence poses some questions about why such an incentive should be needed under every circumstance. Large corporations that have huge financial capabilities are the creators of many AI technologies. Google, Microsoft, and IBM, among other companies, invest in AI research and development at the strategic and competitive level and not only due to the patent incentives. The main catalyst of innovation may not be patents in such a situation.

Moreover, the AI systems are able to discover possible inventions by themselves due to automated technologies of machine learning and data mining. When machines are involved in the creation of inventions as opposed to human inventors, then the argument of encouraging human creativity becomes weaker.

Reward Theory

The other classic argument in support of patents is the reward theory which is that inventors should have their input on technological advancement rewarded and compensated in some way.5 Under this school of thought, patents have been viewed as a reward that has been offered to the intellectual hard work and ingenuity applied in creating new inventions.

In the past, this reason has been highly associated with the notion of single inventorship. Reward to inventors is in the form of patent systems which identify inventors as the creators of new technologies.

But there are complicated questions of inventorship with artificial intelligence. Recent AI solutions are capable of producing new technical solutions without any human intervention. This begs the question of whether AI systems as such need to be identified as inventors.

This problem was in the spotlight of the DABUS cases in which an AI system called DABUS was registered as the inventor in patent applications in various jurisdictions. The Court of Appeal in the United Kingdom declared that the applications of patent were invalid since the Patents Act 1977 provides that an inventor should be a natural person.

The case of Thaler v Comptroller-General of Patents, Designs and Trade Marks confirms that in the present UK law human inventors are the only persons, which can be recognised in patent application.

Nevertheless, in case AI systems start creating inventions more and more on their own, the theory about rewards is less convincing. The reward of human creativity in patents might be the thing of the past in regard to the AI-powered innovation.

Disclosure Theory

Another significant reason as to why patents should be granted is the theory of disclosure. Patent systems make inventors reveal the information about the inventions in order to be given exclusive rights. Such disclosure guarantees the availability of technological knowledge publicly and may be used afterward by other researchers when the term of the patent expires.

The disclosure rule encourages technological advancement because it facilitates sharing of knowledge. In the absence of protection through patent, the inventor may decide to keep his or her invention confidential, not allowing other people to learn about their invention or to develop the same.

The rationale of disclosure would remain important in the context of artificial intelligence. Artificial intelligence technologies can include complicated algorithms and technical procedures that otherwise can be hidden in the secret service of individual organisations. Transparency in technology may consequently be realized by patent disclosure.

Critics however note that protecting patents can at times discourage innovation because this may limit access to valuable technologies. An illustration is when firms possess patents to major technologies in AI to block other firms and corporations from coming up with similar inventions. It may result in the technological power being concentrated in the hands of few large companies.

Challenges Posed by Artificial Intelligence

The concept of artificial intelligence poses some challenges to the conventional patent legal models.

• First, AI systems pose a threat to the aspect of inventorship. The law on patents used to presuppose that inventions are developed by human inventors. Nonetheless, machine learning systems are in a position to process large volumes of data and come up with new technical solutions on their own.
• Second, AI technologies are able to generate high quantities of potential inventions within a short time. Had patents on all AI-generated inventions been registered, the patent system would face the overwhelming challenge of a significant number of patent applications.
• Third, the concentration of economic power can be increased by the growing influence of AI on innovation. Technological innovation can be controlled by large technology companies having access to sophisticated AI systems and building large patent portfolios. This would pose challenges to the smaller innovators and ease competition.

These issues imply that current patent systems might have to develop to accommodate the reality of AI-based innovation.

Are Patent Justifications Still Persuasive?

Nevertheless, these issues do not render traditional justifications of patents unconvincing in some areas.

The incentive theory remains to be a significant factor in driving investment towards technological development. Creating AI technologies are expensive both financially consuming resources (such as investment in computing infrastructure, and data gathering and research staff). Innovation in companies could thus still be motivated by patent protection.

On the same note, the disclosure role of the patent law still encourages the exchange of technological knowledge. Patent publications do present information that is very valuable to be used in the research and development.

Nevertheless, the reward theory seems to be less convincing in terms of AI-generated inventions. When machines produce inventions instead of human inventors, then it is hard to support the use of patents as a reward to human creativity.

Therefore, innovation policymakers might be required to rethink the provisions of patent law to make the system effective in an AI-driven innovation environment. The reforms that can be suggested can be taken in the form of the clarification of the rules regarding inventorship, the creation of new forms of protection of AI-generated inventions as the intellectual property, or the narrowing the range of the protection under the patents in some fields.

Conclusion

Various theoretical justifications have traditionally been used to justify the patent law, among them being the incentive theory, the reward theory and the disclosure theory. These reasons have been used historically to grant exclusive rights to the inventors to promote innovation and technological development.

But the emergence of artificial intelligence technology is putting to test some of the premises that underlie these classical rationales. Specifically, AI also poses some fundamental questions concerning inventorship and human creativity as a factor in the innovation process.

Although the incentive and disclosure reasons behind patents are convincing in a sense, the reward theory is less convincing in a case where machines produce inventions as opposed to human inventors. With the ever-evolving technological innovation as a result of artificial intelligence, patent law might have to evolve to ensure that it does not become irrelevant.

Footnotes (OSCOLA)

1. Patents Act 1977.
2. Lionel Bently, Brad Sherman, Dev Gangjee and Phillip Johnson, Intellectual Property Law (6th edn, OUP 2022).
3. William Cornish, David Llewelyn and Tanya Aplin, Intellectual Property: Patents, Copyright, Trade Marks and Allied Rights (9th edn, Sweet & Maxwell 2019).
4. Catnic Components Ltd v Hill & Smith Ltd [1982] RPC 183 (HL).
5. Robert Merges and John Duffy, Patent Law and Policy (7th edn, LexisNexis 2017).
6. Thaler v Comptroller-General of Patents, Designs and Trade Marks [2021] EWCA Civ 1374.
7. Thaler v Comptroller-General of Patents, Designs and Trade Marks [2023] UKSC 49.
8. Bently and Sherman (n 2).

Part B – Question 3

Advising Zadi on Possible Patent Infringement

Zadi is a veterinarian who has invented some kind of technological device that is used to monitor the health of domestic pets. Her invention involves sensors attached to a food bowl and a heart rate and activity tracker to a collar on the collar of the pet. The system gathers the information about the health and activity rates of the pet and works with this data through an algorithm to define the number of calories supposedly released to give the dog to eat. This data can be accessed by the owner with the help of a smartphone application.

On 1 September 2019 Zadi submitted a patent application (UKIPO, the United Kingdom) and the patent was registered on 10 October 2022. Zadi later found another competing product named PetPlus which gives pets medication via a water bowl system which uses built-in weighing scales to adjust the proper dose.

Zadi is of the opinion that PetPlus has been misusing her invention and would like to establish whether she has a patent infringement claim. To recommend Zadi, one should refer to the applicable provisions of the UK patent law such as the conditions of the protection of patents and the legal test of infringement of a patent.

Validity of Zadi’s Patent

There is a need to determine the validity of the patent of Zadi before one can even consider the possibility of infringement. In the Patents Act 1977 section 1, the criteria to be met before granting a patent include new invention, an imaginative step and industrial application.

The invention by Zadi seems to meet these requirements in this scenario. The device is a mix of various technological factors, such as sensors integrated into a food bowl, monitoring of activity by use of a collar device and an algorithm which calculates the amount of feeding based on the data collected. All these factors imply that the invention could be regarded as innovative.

Inventive step requirement is stipulated in section 3 of the Patents Act 1977, which provides that an inventive step is an inventive step that is not obvious to a man skilled in the relevant field.3 Although the use of sensors, algorithms and automated feeding systems are not a new invention, it could be assumed that the combination of the three could be a technological solution sufficiently inventive.

Moreover, there is no doubt that the invention can be used industrially since it can be produced and applied in the pet care sector of business. Thus, it is probable that the patent that Zadi filed would be taken as valid.

Patent Claims and Their Interpretation

The claims specify what is unique about the invention that will be covered by the patent.

In the patent claim, Zadi states:

A pet sustenance dispensing system This is a system made up of a dispenser mounted to a set of scales, which is paired with a heart rate and activity tracker mounted to a collar, where the quantity of the sustenance dispensed is determined by an algorithm that takes into account the inputs of the heart rate and activity tracker, and scales, which is then informed to the pet owner on the health of the pet via a phone app.

This claim contains several key elements:

• A dispensing device integrated with scales
• A heart rate and activity tracker located on the pet’s collar
• An algorithm processing the collected data
• The use of an app to provide health information to the pet owner

In order to prove infringement, one should demonstrate that the purported infringing product is complete with all the required features of the patented claim.

The case of Catnic Components Ltd v Hill and Smith Ltd led to a change in the interpretation of patent claims in UK legal law because the court held that patent claims ought to be construed purposely and not by an unequivocal literal meaning.

Patent Infringement Under UK Law

The United Kingdom has a section 60 of the Patents Act 1977 that regulates patent infringement. According to section 60(1), an individual violates a patent when he or she manufactures, disposes, uses or imports a patented product without the consent of a patentee.

The infringement can be made if a rival product uses the key components of the invention patented.

Nevertheless, in the event that a competing product does not have one or more of the necessary elements of the patent claim, infringement might not have been proven.

Application to the PetPlus Device

The PetPlus product delivers drugs to the pets with the help of a gadget installed in a water bowl. The gadget measures the weight of the pet on an in-built scale and calculates the proper dosage of a drug. Nevertheless, there are some significant differences between the patented invention of PetPlus and Zadi.

To begin with, PetPlus is meant to deliver medication by use of water instead of food. Although both systems are automated dispensing systems, the scope of the devices varies greatly.

Second, Zadi states in the patent claim that one of the uses of the patent is a collar-mounted heart rate and activity monitor. Such a monitoring device seems to be lacking in the PetPlus system.

Third, the invention by Zadi involves an algorithm that handles various data inputs, which involve the heart rate, level of activity or weight. The PetPlus system seems purely to be based on weight measurements.

Lastly, Zadi device gives data to the pet owner via a smartphone application, and the PetPlus system uses manual buttons and has no mobile application associated with it.

The differences mean that the PetPlus device lacks all the critical elements that Zadi had in his patented invention.

Doctrine of Equivalents

Although a competing product might fail to copy the patented invention in its entirely, under the doctrine of equivalents, infringement can still be experienced when the competing product does substantially the same by performing substantially the same manner in order to accomplish substantially the same result.

The UK Supreme Court in Actavis UK Ltd v Eli Lilly and Co applied the doctrine of equivalents, and in that case, the court acknowledged that the infringement can take place even when a product is not within the literal meaning of the claimed words of the patent.

Using this principle to the current case, one can say that PetPlus also fulfills the same role as the invention of Zadi, which is the automatic release of substances to pets in accordance with the data received by sensors.

The two products however differ greatly. PetPlus neither tracks activity or heart rate, is not based on an algorithm that takes into account numerous inputs and does not show information in a mobile app. These variations can be regarded as significant instead of small ones.

Likelihood of Successful Infringement Claim

To win in a patent infringement claim, Zadi should show that the PetPlus device has the key features of the device she has patented.

According to the accessible data, PetPlus seems to be dissimilar to the invention possessed by Zadi in a number of significant aspects, such as the absence of a collar-based monitoring system, the absence of an app interface and the dissimilar intention of the item.

Both products require automated dispensing systems that are connected to sensor data, but these features may not be enough to prove the infringement.

Consequently, we can assume that a court will find that PetPlus is not covered by the patent claims of Zadi.

Conclusion

To prove that an infringement of a patent occurred, Zadi should prove that the PetPlus device contains the key components of an invention that she has patented. Although both products use the automated systems that deliver substances to the pets, the PetPlus device can be distinguished by a variety of factors, such as the lack of heart rate sensors, the absence of a smartphone application and instead of a food dispenser, the use of a water bowl.

Even though the theory of equivalents permits the courts to examine the functional similarities of inventions, the disparities between the two gadgets are very significant. Consequently, Zadi has few chances of winning a patent infringement case against the manufacturers of PetPlus.

It is in this respect that Zadi might want to think of other possible alternatives, which could include enhancing the commercial standing of her product or even think about the option of licensing instead of engaging in the expensive litigation.

Footnotes (OSCOLA)

1. Patents Act 1977, s 1.
2. Patents Act 1977, s 3.
3. Lionel Bently, Brad Sherman, Dev Gangjee and Phillip Johnson, Intellectual Property Law (6th edn, OUP 2022).
4. Catnic Components Ltd v Hill & Smith Ltd [1982] RPC 183 (HL).
5. Patents Act 1977, s 60.
6. Actavis UK Ltd v Eli Lilly & Co [2017] UKSC 48.