Artificial Intelligence (AI) & IP – Creator, Infringer, Neither, Both, or …
by Michael Antone, U.S. Registered Patent Attorney at Nemphos Braue LLC
Generative artificial intelligence (AI) continues to have an evolving impact on the intellectual property landscape. While the landscape will undoubtedly continue to shift, there is currently an odd lay to the land. On one hand, there is a continuing debate about the recognition of AI as a creator of IP or whether is merely a very sophisticated tool that provides an output in response to an input.
In a recent US district court decision, Thaler v. Perlmutter, USDC-DC Civ Action No 22-cv-01564-BAH, the U.S. Copyright Office’s motion for summary judgment was granted affirming the US Copyright Office’s (USCO) decision that a work generated entirely by AI with no human input is not copyrightable, which is consistent with the USCO March 2023 guidance.
On the patent side, AI may be ultimate version of one of ordinary skill in the art, which, before AI, was a fictional entity contrived by patent office that had the capability of knowing everything in the public domain related to an invention. Now the question may be if AI can churn the prior art and provide a solution, then is that solution obvious? If that is the case, then it could turn out that AI, by definition, can not be an inventor, but merely a tool that a person of ordinary skill in the art uses to solve a problem.
On the other hand, AI is being targeted as a source of infringement of intellectual property rights. For example, Getty Images, Inc. brought suit against Stability AI over Stability AI’s regarding its use of Getty’s copyrighted images in the training of its AI engine. See Getty Images (US), Inc. v. Stability AI, Inc. (US District Court, Delaware 1:23-cv-00135). A similar scenario can be envisioned with regard to patent infringement.
While the IP landscape regarding AI is unlikely to stabilize in the near future, the use of generative AI will continue to grow. Business owners employing AI will want to take measures to ensure that they are acting in a reasonably prudent manner with regard to intellectual property generated using AI and its use in their business.
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