From the Ford Model T to the Tesla, breakthroughs in transportation have revolutionized society. Throughout automotive history, these innovations have been powered by the same engine: intellectual property (IP) rights. Patents, copyrights, trademarks and trade secrets have been the cornerstone to the successful adoption of these advancements in society. Today, autonomous vehicles are en route to rapidly transform how ordinary individuals get from here to there on a daily basis. Through machine learning and artificial intelligence (AI), self-driving cars take the driver out of the equation, potentially saving and improving lives by preventing accidents and relieving traffic congestion—but only if the IP process can keep pace.
According to a report from the World Intellectual Property Organization (WIPO), machine learning is the fastest growing AI technique disclosed in patents. Charting an average of 28 percent annual growth, 20,195 machine learning-related patent applications were filed in 2016; autonomous vehicles alone saw 5,569 filings. With autonomous vehicles on the verge of commercialization, the role of patents in driving continued innovation is paramount. Globally, China and the U.S are in a race for AI technologies with autonomous vehicles at the forefront. In order for the U.S. to remain a global leader in innovation and the development of autonomous vehicles, policymakers must adapt and strengthen IP policies to ensure continued protection of these advancements.
The nature of AI raises a number of important legal and regulatory questions. For instance, AI could change the legal definition of inventor and author as self-learning machines can autonomously develop their own algorithms. In which case, who claims title to further inventions—the programmer, the machine owner, or the machine itself? In a similar vein, how do we recognize AI infringements on IP? The lack of transparency regarding how algorithms are trained and function also imposes challenges to patentability and increases the risk of potential bias. Should the responsibility of increased transparency lie with the innovator, or the assessment system? And how will firms in the auto industry work to support the protection of AI-related inventions?
The current IP framework does not protect fundamental aspects of machine learning. For instance, patents do not protect data compilations and other essential facets of AI that may be competitively advantageous. The issue herein lies in the difficulty of describing the methods or functions of an AI system for a patent grant. Even more problematic is the lengthy patent examination process; whether or not it can keep up with the speed of this technological evolution is uncertain. Patent examination must keep pace with emerging technologies to ensure that innovation is both supported and protected in a clear, actionable, and enforceable legal framework. In which case, IP experts are now asking: is there a role for AI in streamlining patent examination?
In order to avoid existing patent pitfalls, most autonomous vehicle developers currently rely on trade secrets law to protect their intellectual property. Trade secret laws can afford effective AI protections, as long as companies have the resources to maintain secrecy and accept the risks and opportunity costs of competitors hiring away employees. While firms can work internally to retain their trade secrets and protect themselves from external threats, the current legal environment may not fully safeguard AI trade secrets.
Just like the Model T before them, autonomous vehicles have the potential to revolutionize transportation and society for the better, allowing human beings to live their lives more efficiently, safely, and productively than ever before— but only if we maintain IP policies that support revolutionary innovations like those being achieved through AI technology. To ensure that society can reap the benefits, we must address the fundamental changes that AI brings to the innovation landscape and adapt our intellectual property framework to properly enable and protect transformative technologies. With effective IP protections, autonomous vehicles can move society forward at full speed.
Jonathan Weinberger is Senior Vice President of the US Chamber of Commerce Global Innovation Policy Center (GIPC).