The fusion of commercial space, Artificial Intelligence and the law

Artificial Intelligence buys us our future in space. It may turn your developing technology into a successful subsystem application. Intellectual property rights are usually where your value lies – but IP requires careful assessment. With the use of AI, that assessment becomes ever more vital. Determining the valuable elements of an AI augmented space application is key. Datasets underpin machine learning algorithms, but when the machine learns, who owns its creative output? Existing IP law covers many aspects of subsystem development, Patent and Copyright are usually the pertinent governing rights. Each present challenges in context of the treatment of AI as applied to space technology.

Current legal treatment is not straightforward. Patent law may need adaptation to accommodate AI space applications. For example, to receive a patent, your invention needs to be novel, useful, and inventive. Your subsystem invention must be beyond the existing technology state, or published state of the art. ‘Inventive’ in context of space applications, is assessed from the perspective of a hypothetical subsystem developer, having ordinary skill in the art for that technology. If an invention appears obvious to a subsystem developer skilled in that technology, then it doesn’t receive a patent, but if the invention is nonobvious, and has an inventive step, it might.

Patent applicants are required to disclose all human inventors. Failure to do so can render the patent invalid or unenforceable. What if your development effort is augmented by AI? There’s a view in legal circles that augmentation by AI should result in a higher bar to the necessary inventive step. The skilled subsystem developer should be a skilled subsystem developer – augmented by AI.

This AI augmentation isn’t necessarily taken into account by current standards. It’s said this might result in too low a bar to patentability. The argument goes that the solution is for the ‘skilled person’ standard to change – to a skilled person using an inventive machine, or even just an inventive machine.

If there’s an ‘inventive machine’ standard it would make clear that it’s the machine engaging in inventive activity, not the skilled subsystem developer.

It’s a legal debate which will ultimately be settled. Just not yet.

In the meantime, to realize justified commercial value from your space system development which may have entailed years of effort, it’s essential you are at least able to identify what IP rights exist in your work, and if that involved use of AI, be able to properly capture its use to yield commercial value. It can’t be safely consigned to the future.

Which means addressing the issue in the contracts you enter with third parties which exploit your IP. Now.