Trust the law say legal teams, but are they misguided?

4 minute read
25 June 2019

There's a worrying belief among in-house counsel that intellectual property (IP) laws are keeping pace with tech disruption. The truth is the opposite.

The march of disruptive technologies like artificial intelligence (AI), connectivity and blockchain continues unabated.

Their impact on established markets could manifest as a fundamental but mundane switch to a new, ubiquitous operating system (as offered by blockchain) or completely revolutionise a century-old industry, like automotive.

Throughout this upheaval, laws that protect inventions - such as patents, trademarks, copyright and designs - are growing in importance and value.

But by comparison to the pace of change, the law is a dinosaur. So why do IP lawyers think differently?

Are IP laws out of date?

Our recent survey and report on the impact of disruptive technology on IP shows that current IP laws are seen to be keeping pace with the technological disruptors.

Companies are overwhelmingly confident that laws will monetise and protect inventions in these fields.

Of the 400 C-suite, general counsel and heads of IP who took part in the survey, 86% of respondents see current IP laws keeping pace with technological disruptors. 

While IP remains, in most developed regions, a well-established and secure system to protect and monetise ideas, there is a problem.

Almost all of the most disruptive innovations are backed by software.

IP laws written in the 1970s that considered software as copyright work, like a book, are being applied to algorithms and machine learning.

"To gain full patentability of computer programs, you have to show that it's not just a computer program - it's got to have technical character," explains Peter Finnie, an experience patent attorney at Gill Jennings.

"The law hasn't really evolved in 40 years as much as it could have done, because it still fundamentally thinks they are a literary work."

Consider the risks

Companies wanting to enter markets using software-backed products and services, should be aware of the legal risks this poses. And consider other means of protection, like trade secrets.

"There's a risk that their technology solutions will fall between the gap of classic copyright protection and classic patent protection because it's neither one thing nor the other," warns Finnie.

"They may have to use other technology solutions to keep their inventions secret so that people can't copy them."

In the US, after years of confusion following the infamous Alice ruling, the situation regarding software patents is, thankfully, changing.

Rules over protecting AI inventions are developing fast too, but experts agree that proving infringement of an AI-created invention could be problematic.

"On the face of it, we have a flexible IP system that allows technology to develop and for the definition of technical contribution or technical character to evolve in law. But the law always lags," adds Finnie.

And with lawyers lining up to challenge any patent that is assisted by a computer, the law is offering infringers a gamble that could be worth the risk of a trial.

Download a copy of Multiplicity: Smart choices in disruptive times to explore this topic in further detail.

NOT LEGAL ADVICE. Information made available on this website in any form is for information purposes only. It is not, and should not be taken as, legal advice. You should not rely on, or take or fail to take any action based upon this information. Never disregard professional legal advice or delay in seeking legal advice because of something you have read on this website. Gowling WLG professionals will be pleased to discuss resolutions to specific legal concerns you may have.
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Multiplicity: Smart choices in disruptive times

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