Artificial Intelligence (AI) has become ubiquitous in our daily lives and is also transforming the traditional legal profession. Innovators working with AI are seeking to protect valuable intellectual property, but the current IP landscape complicates efforts to protect subject matter produced with AI. 

One of the biggest obstacles to protecting material generated by AI is the lack of a human creator. Recently, Stephen Thaler, an AI developer, tried to patent and copyright creations generated by an AI system called DABUS. However, the USPTO rejected the applications as they lacked a human inventor. Thaler appealed the decision to the U.S. Court of Appeals for the Federal Circuit, which ruled that the patent laws limit inventorship to human beings. Therefore, DABUS’ inventions could not be patented or protected by the patent system.

Thaler also attempted to copyright a two-dimensional work of art created by DABUS, but the United States Copyright Office (USCO) denied the registration, citing precedent that copyright protection is limited to works that are the product of human authorship.

The issue of whether AI can be a patent inventor was taken up by the US Court of Appeals for the Federal Circuit, which ruled that the patent laws clearly limit inventorship to human beings. Similarly, the US Copyright Office ruled that copyright protection was limited to works that are the product of human authorship. This raises the question of whether subject matter created partly by an AI or by a human using AI as a tool could be protected. 

The limits on protecting AI-generated content through patents and copyrights have been demonstrated by the subject matter created by DABUS and Midjourney, respectively. Thus, AI developers need to explore a nuanced approach to protecting their intellectual property. This could involve a combination of patents and copyrights for their own contribution to the outputs, and trade secret protection for AI-generated output that is intended only for internal and confidential use. 

If your team is on the cutting edge of AI, working to create new and exciting innovations, we can help you protect your efforts. Schedule an appointment with us today and move forward with confidence.