Ownership of AI-Generated Intellectual Property
Let’s face it, artificial intelligence (AI) is everywhere these days. Every company, start-up, and even consumers, are all fixated on AI and in an all out race to launch the next “greatest AI tool of all time” to save us all time, money, effort, and solve all of our problems.
AI tools can be used in a variety of ways, including to create new text, answer questions, solve problems, code software, generate images, sounds, and videos, and so much more, all in response to users’ prompts. An AI prompt is simply a written description of the output a user desires from an AI tool, and the more specific the prompt, the better the output. So, for example, if you want an AI tool to generate for you the source code for your new software application, tell it what you want the software to do and to look like - and be as specific as possible – and the right AI tool will code it for you! Simple, right?
While it is true that AI tools can boost efficiency and revolutionize humans’ otherwise limited capabilities, it particularly poses challenges for intellectual property (IP) rights ownership. That is, the rapid rise of AI has raised several novel questions in IP law, including when and how inventions and content created with the help of AI systems can be protected and ultimately owned.
What is IP?
Before understanding how IP can and cannot be protected, it is crucial to understand the various types of intellectual property. There are 4 main types of intellectual property: patents; trademarks; copyrights; and trade secrets.
Patents: Patents protect inventions, designs, and methods. For medical technology and innovations, this can include new medical devices, pharmaceuticals, drug delivery techniques/methods, and even software.
Trademarks: Trademarks are a brand’s identity, logos, slogans, and even sometimes the shape/appearance or even smell of an item that is unique to the company.
Copyrights: Copyrights protect original works of authorship. In the medical technology and innovation field, this might apply to, for example, written materials/guides, software, and educational content.
Trade secrets: Trade secrets shield confidential information that provides a competitive advantage, for example, formulas for making new drugs, manufacturing processes, or even customer lists.
Inventorship and Authorship
Ownership of AI-Generated IP
U.S. patent law provides that whoever invents patentable subject matter is entitled to a patent. Particularly, an inventor must be a “person” (aka a human) who conceives the subject matter of the claim of the patent, or “persons” who collaborate to produce the invention. Similarly, U.S. copyright laws provide that only humans – not computers, AI tools, robots, etc. – can be “authors” of copyrightable works. So, the existence of a human inventor or author is directly relevant to the question of whether a work can be protected under U.S. intellectual property laws.
U.S. courts have clearly stated that solely AI-generated inventions cannot be patented and solely AI-generated works cannot be copyrighted. However, the scenario of when a human has used an AI tool merely for assistance to generate an invention or work must be contemplated. That is, if an inventor/author significantly contributes to an AI-assisted invention, it is possible for the inventor/author to receive a patent/copyright, but such determinations are difficult and can be subject to challenge. For example, even if such a person were to obtain a patent or copyright on their invention or work, as soon as they attempt to enforce those IP rights against an infringer, the infringer would challenge the validity of the registration and claim that because it was made with AI it is therefore invalid. To be fair, a claim of invalidity is a typical strategy in any infringement defense and is always a consideration, but the line between solely AI-generated and AI-assisted might be the deciding factor in such an infringement lawsuit.
So, what’s the answer? Best practice is to avoid using AI if you want to obtain patent or copyright protection. That does not mean avoid AI altogether, it just means that if you use AI for, say, motivation or a little help in achieving your final product, that’s fine, but take the extra step to obtain the final result using your own, human brain.
To learn more about how to protect your IP, please visit us at www.madan-law.com and/or on social media @madanlaw and @youripattorney or reach out to us at (713) 364-4796 and one of our licensed attorneys will be glad to help you.