Thursday Thoughts with Kendall Lovell: Protecting Intellectual Property in the Era of AI

AI is being used daily from creating new technologies to making businesses more efficient. As AI-based technology continues to advance, it has left a wake of lawsuits in its path that are changing the landscape of intellectual property rights. Many issues facing the interplay between AI and intellectual property rights remain unsettled, but one issue that has been settled is whether inventions created by AI are eligible for patent protection. 

The answer is a resounding no.

In Thaler v. Vidal, 43 F.4th 1207, 1213 (Fed.Cir. 2022), cert denied, 143 S.Ct. 1783 (2023), Stephen Thaler filed two patent applications with the United States Patent and Trademark Office (USPTO) naming an AI software as the inventor. The USPTO rejected the applications for lack of a valid inventor. Thaler sought judicial review. The district court agreed with the USPTO and found that “inventor” is intended to be limited to human beings. The Federal Circuit affirmed, but left open the issue of “whether inventions made by human beings with the assistance of AI are eligible for patent protection.” 

Just this year, on February 13, 2024, the USPTO issued examination guidance on the patentability of inventions made with the assistance of AI. The USPTO’s guidance makes it clear that such inventions are “not categorically unpatentable.” Rather, patentability will depend on whether a human being significantly contributed to the invention. The USPTO’s guidance then goes on to describe a number of factors examiners will consider when making a determination on the matter. I expect this will open up the floodgates for inventions developed with AI assistance. 

Another concern that businesses have is how to ensure that their intellectual and copyright properties are not infringed upon by AI work.

Recently, the New York Times joined these ranks and filed suit against OpenAI and Microsoft for copyright infringement, accusing them of using millions of its copyrighted articles to train chatbots. The Times alleges those chatbots then mimic the Times’ reporting style and, when prompted, provide users with almost identical excerpts from the Times’ articles. The crux of the defendant’s defense is that the training of AI models qualifies as fair use. Fair use allows the use of copyrighted materials for various purposes including scholarship and research so long as that use generates something new and transformative. Although this case isn’t the first of its kind, the New York Times is the biggest player to enter the arena thus far. It is one to watch as the outcome will likely have lasting repercussions on both AI technologies and intellectual property rights.

It is imperative for content creators and brands to proactively protect their intellectual property.  This involves monitoring digital and social channels for others using the client’s intellectual property or elements thereof. Trademark or trade dress monitoring may be warranted, which firms such as Fennemore are already prepared to provide. It is also prudent to monitor large compiled datasets for the inclusion of protected visual elements like logos. There are a number of tools on the market that make this easier so clients don’t have to use valuable internal resources to comb through terabytes of data.

In addition to monitoring the usage of others, clients can take an active stance by ensuring their contracts and business licenses protect their intellectual property. Depending on the contract, this may mean including specific language regarding the treatment of their intellectual property or building in protections against AI into their confidentiality clauses. Ultimately, clients need to work alongside their attorneys to develop and implement a cohesive strategy intended to both prevent infringement and catch it early on when infringement does occur.

Fennemore has always kept its finger on the pulse of technological growth and our attorneys are well aware of the threat Artificial Intelligence technologies pose to our client’s intellectual property rights. We work diligently with our clients to ensure that proper monitoring is occurring to identify infringement as soon as possible. Once infringing usage has been identified, we work with our clients on how best to proceed in protecting their rights, including sending cease-and-desist letters, filing for cancellation before the United States Patent and Trademark Office and bringing suit when appropriate.