IP Blog

Navigating Copyright, Patent and Intellectual Property Challenges in the Era of AI

Artificial Intelligence is all over the news. Pundits review it in awe; it’s either an amazing new tool that will revolutionize the world, or a potential evil that will change everything for the worse. It’s been reported that it will displace knowledge workers like engineers, lawyers, and accountants. Only time will tell.


ChatGPT can write articles in seconds.  It can write, debug, and explain computer code. It can even create original stories in the style of Hemingway or Shakespeare, in multiple languages. Other AI systems can create artwork from prompts (“Zarya of the Dawn”) have a singer virtually perform another singer’s music (an AI-generated Rihanna singing Beyonce’s “Cuff It”) and have singers appear to sing a new song they’ve never actually sung (“Heart on My Sleeve,” performed by an AI-generated Drake and the Weekend).


As AI continues to develop, it begs a question: What can be protected by patents and copyrights?


Stephen Thaler and DABUS


Inventor Stephen Thaler has been credited with bringing this question to the main stage.

Stephen Thaler created an AI computer he has named DABUS (device for the autonomous bootstrapping of unified science). Unlike everyday AI, such as Alexa and Siri, DABUS is a unique system often referred to as Creativity Machine, meaning it is capable of independent and complex functioning. As such, DABUS was named as the sole inventor on two patent applications filed in several countries. One invention was for a food container, and the other for an alert light. This has resulted in a worldwide debate over how to handle computer-created innovation.


Thaler claims he didn’t direct the machine to invent these products. Instead, he said that DABUS analyzes data, generates ideas, and invents products. Since Thaler wasn’t involved in the process of inventing these products, he feels that DABUS should be named as the inventor. However, he says he should own the patent rights because he owns DABUS.


Thaler was refused consideration of his inventions by the United States Patent and Trademark Office because he didn’t name a human as an inventor. Thaler appealed this decision to the U.S. District Court for the Eastern District of Virginia and The Court of Appeals for the Federal Circuit, both of which upheld the USPTO decision. He then filed a Petition for Writ for Certiorari with the United States Supreme Court, which refused to hear his petition.


Thaler also attempted to copyright an AI-generated work titled “A Recent Entrance to Paradise.” The work is the output of Thaler’s Creativity Machine system. The United States Copyright Office refused registration and issued an opinion letter stating its reasons — which, put simply, were that copyright registration is unavailable for AI-generated works in the United States. On June 2, 2022, Thaler filed a complaint in the U.S. District Court in Washington, D.C., requesting the court to order the copyright office to register his work. This court ruled against him as well.


The recent denial of Stephen Thaler’s appeal by the Supreme Court regarding AI as an inventor has ignited a broader conversation on copyright, patent, and intellectual property issues. While the decisions made by the USPTO, the District Court of Virginia, the Federal Circuit Court of Appeals and the U.S. Copyright Office were well-reasoned, it’s essential to shift the focus from AI as an inventor to its role as a powerful tool in the invention process. What needs to be explored is the definition of AI, its function as a creator’s aid, and the need for congressional intervention to address legal and ownership issues surrounding AI-generated creations.


The recent legal decisions reaffirm the notion that patent and copyright laws require inventors to be human beings. The Code of Federal Regulations defines an inventor as an individual, reinforcing the traditional understanding of inventors as humans. Therefore, for AI to be considered an inventor, Congress will need to enact specific legislation addressing this issue.


In Thaler’s lawsuit against the USPTO, it became clear that AI can’t obtain a patent or copyright. But what about its use in the creative process. Can AI be a tool to assist in the creation of inventions or works of art that can be protected?  Are their new rules to be applied? We will explore these questions in the next article. Until then, if you want to talk about your patents or copyrights, give me a call.


Bill Honaker, “The IP Guy” is a former USPTO Examiner, a partner with Dickinson-Wright, and author of the forthcoming book, Invisible Assets – How to Maximize the Hidden Value in Your Business. To download a sample chapter click here.

To get answers to your questions click here. To schedule a time to talk, email Bill@IPGuy.com, or give him a call at 248-318-7015. You can find more articles about IP, patents, trademarks, and trade secrets at ipguy.com.

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