UK Digital Strategy initiatives in AI, robotics underscore lagging U.S. development caused by patent ineligibility of software

By Steve Brachmann
March 11, 2017

Artificial intelligenceBefore there was President Donald J. Trump, there was Brexit. It was the first in a growing series of moves towards political nationalism which, despite being widely scoffed at early on, has won enough favor to become today’s political reality. The UK’s planned secession from the European Union (EU) as a result of the country’s referendum vote last June has major economic implications for the country as it releases Britain from a list of regulatory obligations enforced by the EU and allows the country to negotiate bilateral trade agreements, the first time the UK government will have engaged in such negotiations since 1973.

Even as it moves towards leaving the EU, the UK is looking ahead to see where its economic fortunes might lie in the years to come. In late February, the country’s plans came into a bit more focus with the UK’s Department for Culture, Media & Sport announcing a new Digital Strategy tech development policy initiative. The UK cites an artificial intelligence (AI) market research report published last year by Accenture, which notes that intelligent automation, augmentation and total factor productivity innovations could provide £654 billion ($814 billion USD) worth of economic growth by the year 2035. The growth of AI in the UK could be particularly valuable to the country’s strong pharmaceutical and aerospace sectors, according to the Accenture report.

The UK’s initial investment into its Digital Strategy isn’t huge at £17.3 million ($21.2 million USD) but that funding boost will be dedicated towards supporting the development of new robotics and AI technologies at UK academic institutions. Another Digital Strategy initiative will focus on a major review of AI technologies that will inform how the British government can work with the private sector to further promote the development of AI technologies.

The announcement of the UK’s Digital Strategy initiative and the investment into developing tech hubs for artificial intelligence and robotics technologies is welcome news to those already operating in that sector within the country. “It’s good news that the Government is going to invest in developing local skills and technology hubs for A.I. & Robotics,” said Chris Rosebert, head of data science and artificial intelligence at Networkers Technology. “Without doubt A.I. and Robotics are providing the biggest technology that we have seen in a very long time and will affect every business and individual. The fight for skilled professionals is intense and tech hubs like Berlin & Barcelona are becoming increasingly attractive to UK-based candidates. Any steps the Government can take to combat this can only be positive.”

Of course, not every step the government can take is a positive one, especially if it’s a backwards step, and nowhere is this more painfully apparent than in the United States. At the same time that our own federal government is evincing a great deal of skepticism as to the patentability of subject matter important to the AI sector, namely software, other nations are moving ahead with plans to improve intellectual property protections for such innovations. For example, new patent examination guidelines set to go into effect in China during early April will increase patent eligibility for software and business method inventions.

Here in the United States, much of the current zeitgeist surrounding the patentability of software inventions has been informed by the U.S. Supreme Court’s unfortunate June 2014 decision in Alice Corp. v. CLS Bank International, which established a two-step test which U.S. courts can use to adjudicate whether a patent’s claims are drawn to patent-eligible subject matter or rather that the claims fail to cross the threshold of Section 101 of U.S. patent code, which does not allow patent eligibility for scientific principles or naturally occurring articles.

The way that the Alice v. CLS decision has been interpreted by many officials in the U.S. patent system is evidence of a wide mistrust of any technical advance that seems even tangentially related to software. How else can one explain the recent decision by an administrative law judge at the Patent Trial and Appeal Board (PTAB) that a magnetic resonance imaging (MRI) machine is an abstract idea and thus not eligible for patent protection? If the enormity of the moronic nature of that decision takes a few seconds to fully take in, you’re not alone. The fact that an appellate board within the U.S. Patent and Trademark Office is even just slightly within the clutches of Luddites who can somehow rationalize that a physical machine is an abstract idea should be terrifying to any American innovator, and probably is.

The absurd way in which important players in the U.S. patent system view the patentability of software innovations will undoubtedly harm our country’s chances of benefiting economically from the coming AI boom. Which is too bad, because that same Accenture study on AI’s economic benefits to the UK predicts that AI could add as much as $8.3 trillion to the American economy, thanks in no small part to “a strong entrepreneurial business climate and advanced infrastructure position.” But that strong entrepreneurial business climate is undercut by the weakening of patent protections for software, which makes up much of the foundation of artificial intelligence technologies.

The major stumbling block posed by the Alice standard surrounds the entire concept of what constitutes an abstract idea. Typically, the reasoning goes that if a claim covers a process which could be completed by a human, then the claim is merely an abstract idea implemented by a computer. This line of thinking is exactly why a revolutionary new piece of contract review software that performs work which takes lawyers 360,000 hours per year to complete is ultimately ineligible for patent protection in the U.S.: humans can do it, so having a computer perform that work is a patent-ineligible abstract idea.

When does this intellectually dishonest sprawl in the U.S. patent system end? Will it come when we start to see the rest of the world take the lead in autonomous vehicle development despite the fact that Tesla Inc. (NASDAQ:TSLA) and other companies pioneered that concept in the United States? After all, humans have been driving cars for more than a century and steering personal transportation machines like horse-and-buggy carriages for even longer than that. Isn’t autonomous driving clearly and simply an abstract idea that can be accomplished by humans without a computer, so computer-related innovations in the field aren’t eligible for patent protections? Tesla CEO Elon Musk’s misguided comments regarding patents certainly haven’t helped the situation. Until some sort of legislative or judicial review of Section 101 jurisprudence related to software inventions is seriously undertaken, there are grave concerns for the future of many sectors of the economy which could be growing at faster rates, not just artificial intelligence and self-driving cars. After all, humans have been thinking for millennia, so a patent claiming techniques for providing intelligence in artificial ways thanks to computing technologies couldn’t possibly stand a chance during an inter partes review (IPR) at PTAB.

Over in the United Kingdom, the government’s investment in AI and robotics development has already encouraged large research and development investments within the country. A day after the British government announced the Digital Strategy policy initiatives, Bloomberg reported that famed British inventor Sir James Dyson announced that the Dyson Company is renovating a former military barracks about 100 miles west of London into a 517-acre campus devoted to research and development into robotics and AI, along with battery and vision systems technologies. The project represents an investment of a reported $2.5 billion by the company.

The Author

Steve Brachmann

Steve Brachmann is a writer located in Buffalo, New York. He has worked professionally as a freelancer for more than a decade. He has become a regular contributor to IPWatchdog.com, writing about technology, innovation and is the primary author of the Companies We Follow series. His work has been published by The Buffalo News, The Hamburg Sun, USAToday.com, Chron.com, Motley Fool and OpenLettersMonthly.com. Steve also provides website copy and documents for various business clients.

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