Head of Innovation at InnoScot Health, Robert Rea analyses the challenges and opportunities of integrating artificial intelligence into the NHS

Artificial Intelligence (AI) offers huge possibilities for healthcare improvement, and many are already being realised – but it also presents complexities for innovators looking to protect their ideas.

We’ve seen NHS Scotland and its triple helix partners across industry and academia increasingly leveraging AI with the aim of continuously improving patient care while streamlining operations for smarter, more efficient working practices.

Projects already underway include the use of AI to help detect lung cancer, assess mammograms and skin lesions, and be used to predict or monitor health conditions, to name just a few examples.

Such applications hold the potential to nothing less than revolutionise diagnosis, treatment, and management of patients.

Thanks to a bank of high-quality data-led insights and forward-thinking, innovation-ready staff, NHS Scotland and its partners are well-placed to take a lead on taking advantage of the benefits of AI transformation.

Those benefits should absolutely be explored fully for improved patient outcomes and predictive potentialities. However, in applying the vast possibilities of AI to Scotland’s healthcare system, we also must be cognisant of broader implications; and the recent legal debate of whether AI can be named as an inventor has generated much interest.

It is an area we at InnoScot Health have been closely following - ensuring protection of the intellectual property (IP) inherent in new ideas that involve AI can be complex, particularly depending on how much of the idea sprang from the AI itself.

Patents are used to protect novel aspects of inventions, stopping others from duplicating them – that much is clear cut – but in December, the UK Supreme Court made headlines when it upheld earlier decisions which rejected a bid to allow AI to be named as an inventor in a patent application.

In 2019, US technologist Dr Stephen Thaler had sought to have his AI recognised as the inventor of a food container and a flashing light beacon after claiming the software was sentient and conscious, but the intellectual property office (IPO) rejected this, saying only a person could be named as an inventor.

The decision was backed by both the High Court and Court of Appeal after they supported the view that only ‘persons’ could hold patent rights.

Dr Thaler was not deterred though, and in December, five Supreme Court judges dismissed a bid to reverse those decisions, concluding similarly that "an inventor must be a person" and that AI could not secure patent rights.

One of the judges Lord Kitchin, said the AI was “a machine with no legal personality” and that Dr Thaler had “no independent right to obtain a patent in respect of any such technical advance”.

The judgement, commentators noted nevertheless, did not specifically deal with the issue of whether the AI did in fact invent the food container and light.

While the IPO welcomed the judgement and the clarification it offered – labelling the dispute a “test case, rather than one which is motivated by any pressing need in the real world” – it added interestingly that the government will “keep this area of law under review to ensure that the UK patent system supports AI innovation and the use of AI in the UK".

So, would the outcome have been different if the AI had come up with the invention, but Dr Thaler had been identified as the inventor and owner of the patent? That remains unclear, though what is certainly clear is that a lot of organisations would find themselves in a predicament going forward if they were not able to own the patent from AI software-led inventions.

It serves to underline the complexities that now stem from AI use and how its growing prominence and advancement could force law changes in future.

Patents are not the only area of intellectual property protection that are being tested by AI – copyright too is being reassessed in light of fresh developments in the likes of AI-generated works.

Does the copyright from the works belong to the original programmer of the AI, for instance, or does it belong to the user who is instructing it to perform the task?

In future, will companies who use autonomous AI have to declare that their employees were the inventors despite them having little to do with the actual creation?

The IPO recently stated that it acknowledges "there are legitimate questions” around how intellectual property looks on AI creations and decides who owns them.

It believes that any future changes would need to be considered on an international level, not just within the UK.

All Scottish healthcare leaders have been very clear on the deployment of AI – that it should supplement human expertise rather than replace it – and there’s no doubting how effective it appears to be in, for example, enabling review and translation of mammograms with high accuracy alongside clinicians’ experience and insight.

Used well, AI can become an important safeguard in such processes while making them faster and more efficient.

For AI innovators working in healthcare though, the securing of patents and copyrights may become increasingly complex.

Under UK patent law, the NHS, as employer, will usually own the intellectual property created by healthcare professionals in the course of their employment or specifically assigned duties.

Comprehensive AI policies must therefore adapt to encompass both current challenges in delivering its benefits in healthcare settings, while precluding issues from likely future advances.

With a robust, horizon scanning policy in place, AI-related innovation can flourish but with the peace of mind which comes through IP protection.

Protecting the IP rights of the NHS represents one of the cornerstones of InnoScot Health's service offering and why the organisation was initially set up.

We assist NHS Scotland in managing this IP, to ensure a return on investment for the health service. Any revenue generated from commercialising ideas and innovations from healthcare professionals is shared with the originator and the health board through a bespoke NHS inventor award scheme as detailed in individual employee contracts and health board IP policies.