A Brave New World? Computer Decision Making by IP Australia

With use of artificial intelligence very much in the news lately, it’s both important and topical to see how government IP agencies are approaching the issue. Proposed legislative amendments – expected to come into force in 2018 – will enable computer decision making for patent, trade mark and design matters in Australia.

Computer decision making can include computer assisted decision making. The proposals would automate and should accelerate decision making which would be attractive to IP owners seeking accelerated administrative processes.

The proposed amendments deliberately place no limitation on the nature of decisions that can be made by computer. However, according to an Explanatory Memorandum accompanying the legislative amendments, IP Australia initially proposes to use computerised decision making for:

  • simple decisions that require no judgement and only a simple analysis of undisputed facts (for example, granting an extension of time after advertising it, if no opposition has been received within the prescribed period); and
  • actions relating to powers or obligations flowing directly from a separate decision that has already been made (for example, notification of a renewal of a trade mark to the registered owner).

An obvious question is how to address errors in computer decision making. In the first instance, IP Australia can substitute a decision found to be incorrect. Provision is also being made for administrative review. Informal approaches identifying errors may also be effective. Taken in isolation, these provisions appear to be reasonable though – as the automated decisions become more complex and arguably more subjective (perhaps being extended to search and examination) – there is the potential for controversy.

Fortunately, it is unlikely that such developments will occur without consultation between IP Australia and its clients.