Copyright, Trademark, and Artificial Intelligence

Back in August 2019, the USPTO published a notice requesting public input on the interplay between patent law and artificial intelligence (AI). In October, the USPTO expanded its notice to extend the inquiry to include copyright, trademark, and other IP rights.  The PTO has now extended that deadline for comments until January 10, 2020. 84 FR 66176.

Questions for the public: 

1. Should a work produced by an AI algorithm or process, without the involvement of a natural person contributing expression to the resulting work, qualify as a work of authorship protectable under U.S. copyright law? Why or why not?

2. Assuming involvement by a natural person is or should be required, what kind of involvement would or should be sufficient so that the work qualifies for copyright protection? For example, should it be sufficient if a person (i) designed the AI algorithm or process that created the work; (ii) contributed to the design of the algorithm or process; (iii) chose data used by the algorithm for training or otherwise; (iv) caused the AI algorithm or process to be used to yield the work; or (v) engaged in some specific combination of the foregoing Start Printed Page 58142activities? Are there other contributions a person could make in a potentially copyrightable AI-generated work in order to be considered an “author”?

3. To the extent an AI algorithm or process learns its function(s) by ingesting large volumes of copyrighted material, does the existing statutory language (e.g., the fair use doctrine) and related case law adequately address the legality of making such use? Should authors be recognized for this type of use of their works? If so, how?

4. Are current laws for assigning liability for copyright infringement adequate to address a situation in which an AI process creates a work that infringes a copyrighted work?

5. Should an entity or entities other than a natural person, or company to which a natural person assigns a copyrighted work, be able to own the copyright on the AI work? For example: Should a company who trains the artificial intelligence process that creates the work be able to be an owner?

6. Are there other copyright issues that need to be addressed to promote the goals of copyright law in connection with the use of AI?

7. Would the use of AI in trademark searching impact the registrablity of trademarks? If so, how?

8. How, if at all, does AI impact trademark law? Is the existing statutory language in the Lanham Act adequate to address the use of AI in the marketplace?

9. How, if at all, does AI impact the need to protect databases and data sets? Are existing laws adequate to protect such data?

10. How, if at all, does AI impact trade secret law? Is the Defend Trade Secrets Act (DTSA), 18 U.S.C. 1836 et seq., adequate to address the use of AI in the marketplace?

11. Do any laws, policies, or practices need to change in order to ensure an appropriate balance between maintaining trade secrets on the one hand and obtaining patents, copyrights, or other forms of intellectual property protection related to AI on the other?

12. Are there any other AI-related issues pertinent to intellectual property rights (other than those related to patent rights) that the USPTO should examine?

13. Are there any relevant policies or practices from intellectual property agencies or legal systems in other countries that may help inform USPTO’s policies and practices regarding intellectual property rights (other than those related to patent rights)?

Artificial Intelligence (AI) Patents

 

14 thoughts on “Copyright, Trademark, and Artificial Intelligence

    1. 1.1

      “Stakeholders throughout the patent system agree that patent quality is a good thing. We all want the U.S. Patent and Trademark Office (USPTO) and its examiners to have sufficient resources to perform their exacting work”

      For “sufficient resources” defined as “not a cent more than we pay today”.

      1. 1.1.1

        I think the reality is that if things keep up the way they are going that the PTO employees are going to be looking at salary reductions and layoffs.

        The foreign work is what has kept the PTO afloat. That could dry up overnight.

        Again, in a recession I’d say expect 40% reduction in patent filing.

        1. 1.1.1.1

          An extended period of reduced applications could lead to layoffs, but I doubt there would be pay reductions. Either the government will pay for examination out of general fund at the rate they declared appropriate or they’ll go to a registration system. Hopefully the latter.

          1. 1.1.1.1.1

            I think Ben you are in denial. The patent system in the USA is on its last legs right now. It is on the verge of collapse. It is at a tipping point. I work with lots of inhouse people and patents are being deemphasized more and more each year. The only thing that is holding it together is that patents have come back so many times that there is a corporate memory and they are afraid that patents will suddenly become strong again so they keep at it.

            Once they become convinced that patents are just going to keep getting weaker what will happen is budgets will be cut another 50-80 percent.

            1. 1.1.1.1.1.1

              The patent system in the USA is on its last legs right now. It is on the verge of collapse.

              Well, only if you believe that the rest of the country is also “on the verge of collapse.” I guess that’s not a totally unreasonable belief but we’ll find out soon enough. By early November of next year for sure.

            2. 1.1.1.1.1.2

              I am not in denial that patent applications could crash. I disagree about how the government is likely to handle that crash.

          2. 1.1.1.1.2

            In 5 years I’ve seen inhouse budgets from large corporations be slashed 50% for patents. And upper management question why any money is being spent or state that perhaps we can get by with a budget that is 10% of what it was.

            The fact is that the endless need to be more efficient to make Wall Street numbers means that patents are going to down hard in the next recession.

            1. 1.1.1.1.2.1

              I’ve seen inhouse budgets from large corporations be slashed 50% for patents.

              Given the budgets of many large corporations, that could still represent an increase in the absolute amount of money spent on patents.

              I know: math is hard for you.

            2. 1.1.1.1.2.2

              patents on ineligible abstractions and logic processes “on a computer” are going to down hard in the next recession.

              Fixed for improved accuracy.

              Patents on tangible products will continue to be filed and intelligent patent attorneys will remain employed. Litigation of junk patents and the attorneys who rely on them will take a big hit, as it always does.

              But that will be the least of the problems for the wealthiest US citizens during the next recession. I’ve been stockpiling guillotines. We’re gonna need ’em! LOL

          3. 1.1.1.1.3

            Either the government will pay for examination out of general fund at the rate they declared appropriate or they’ll go to a registration system.

            Which orifice was this pulled out of?

            1. 1.1.1.1.3.1

              This is an exemplary post of yours. You jump in to challenge an opponent while ignoring the rediculous assertion of an ally.

              If you think it’a realistic to say that the government is going cut the salaries of General Schedule federal employees* there’s no point in doing anything but laugh at you.

              *To be totally clear, I am refering to salary reductions. Layoffs or furoughs are distinct and plausible.

              1. 1.1.1.1.3.1.1

                And your whining post is an exemplary reply from you.

                I responded to YOUR inanity. Just because someone else may have been inane does NOT give a free rider to YOU being inane.

                Grow a pair.

      2. 1.1.2

        “For “sufficient resources” defined as “not a cent more than we pay today”.”

        Yeah that was apparently literally what the “outside stakeholders” wanted according to ol’ Drew hirschfield (iirc).

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