Artificial Intelligence and Intellectual Property

Next year will likely see recommendations and rules from the U.S. Patent and Trademark Office (USPTO) and the U.S. Copyright Office in relation to artificial intelligence and its impact on intellectual property. Recognizing the lack of laws governing AI, on October 20, 2023, President Biden issued an Executive Order on the Safe, Secure, and Trustworthy Development and Use of Artificial Intelligence (Order). The Order acknowledges AI’s “extraordinary potential for both promise and peril,” and parts of the Order deal specifically with intellectual property.

In the Order, the USPTO is directed to publish guidance to USPTO patent examiners and applicants addressing the “use of AI, including generative AI, in the inventive process” and how “inventorship issues ought to be analyzed” in terms of AI. The Order further requires that the USPTO Director “issue additional guidance to USPTO patent examiners and applicants to address other considerations at the intersection of AI and IP.” The USPTO has thus far refused to grant patent protection to any invention created by AI as the Patent Act seems to mandate that a patentable invention must be created by a human. Questions remain, however, as to inventions created in part by AI.

The Copyright Office has also been directed to issue recommendations relating to the use of AI and copyrights, including the scope of protection for works created using AI and the manner in which copyrighted works can be used in AI training. Prior to the issuance of the Order, the Copyright Office published a “Notice of inquiry and request for comments” regarding AI and (a) the copyrightabilty of works created by AI, (b) the use of copyrighted works to train AI, (c) the liability for infringing works created by AI, and (d) the treatment of generative AI that imitates human artists. The Copyright Office has consistently taken the position that works created by AI are not capable of copyright protection because a copyrightable work, like a patentable invention, must be created by a human. There are many other issues that remain unresolved.

Although the Order does not specifically mention trademarks, the Order lists as a guiding principle that AI and related technologies must be used to “promote competition.” A concern with the use of AI systems is that AI may favor larger companies when recommending products to consumers, making it more difficult for small companies to compete, and  one can easily see how larger companies with significant resources could use AI to quell competition, giving rise to potential claims of unfair competition or infringement.

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