Artificial Intelligence and Intellectual Property: Navigating the Intersection in 2024

In an era where artificial intelligence (AI) is rapidly transforming industries and reshaping our world, the convergence of AI and intellectual property (IP) presents both unprecedented opportunities and intricate challenges. As AI systems exhibit increasing levels of autonomy and creativity, navigating this intersection becomes paramount for fostering innovation, protecting creators’ rights, and ensuring fair competition. In 2024, the United States government took a proactive step towards addressing these issues with the issuance of an Executive Order on AI.

Executive Order Sets the Stage

On October 20, 2023, President Biden signed an Executive Order titled “Safe, Secure, and Trustworthy Development and Use of Artificial Intelligence.” This order recognized the urgency of addressing the complex interplay between AI and IP. It directed various federal agencies, including the United States Patent and Trademark Office (USPTO), to take specific actions to promote responsible AI development and use while safeguarding IP rights.

USPTO’s Role in Shaping AI-Related IP

The Executive Order placed a particular emphasis on the USPTO’s role in shaping the IP landscape surrounding AI. Recognizing the need for clear guidance in this uncharted territory, the order outlined several directives for the USPTO:

• Publish guidance to USPTO patent examiners and applicants on the use of AI, including generative AI, in the inventive process. This guidance aims to clarify how inventorship issues should be analyzed in the context of AI-generated inventions.
• Issue additional guidance to USPTO patent examiners and applicants to address other considerations at the intersection of AI and IP. This broader guidance is expected to cover a range of issues, such as the patentability of AI-generated inventions, the role of AI in the prior art search process, and the impact of AI on IP licensing and enforcement.

Addressing the Patentability of AI-Generated Inventions

One of the most pressing questions raised by the rise of AI is whether inventions created solely or partially by AI can be granted patent protection. The Patent Act, which governs the issuance of patents in the United States, currently seems to require that a patentable invention be created by a human inventor. However, the increasing sophistication of AI systems has blurred the lines between human and machine creativity, raising questions about the applicability of this requirement in the age of AI.

The USPTO has thus far maintained a cautious approach, refusing to grant patent protection to any invention created entirely by AI. However, it remains unclear how the USPTO will handle inventions created in part by AI. The Executive Order’s directive for guidance on this issue suggests that the USPTO may be considering a more nuanced approach, allowing for the possibility of patent protection for inventions that involve a significant human contribution.

AI and Trademarks: Competition and Unfair Competition Concerns

While the Executive Order does not specifically address trademarks, it does emphasize the importance of using AI and related technologies to promote competition. This guiding principle raises concerns about the potential impact of AI on trademark law. AI systems are increasingly used to recommend products to consumers, and there is a risk that these systems may favor larger companies, making it more difficult for small businesses to compete. Additionally, larger companies with significant resources could potentially use AI to stifle competition, leading to claims of unfair competition or infringement.

Navigating the Evolving Landscape

As AI continues to advance and its applications proliferate, the intersection of AI and IP will undoubtedly become more complex. The USPTO’s upcoming guidance on AI-related IP issues is expected to provide much-needed clarity and direction for innovators, businesses, and policymakers alike. By carefully navigating the evolving landscape, we can ensure that AI is used as a force for progress and innovation, while also protecting the rights of creators and fostering a competitive and fair marketplace.