Abstract
Humankind has always sought to solve problems. This impetus has transformed hunters and gatherers into a society beginning to enjoy the fruits of the fourth industrial revolution. As part of the fourth industrial revolution, and the increased computing power accompanying it, the long-theorized concept of artificial intelligence (“AI”) is finally becoming a reality. This raises new issues in myriad fields—from the moral and ethical implications of replacing human activity with machines to who will own inventions created by AI. While these questions are worth exploring, they have already received a fair amount of coverage in popular and theoretical writing. This paper will take a different direction, focusing on the current and near-future issues arising on the ground at the intersection of AI and intellectual property (“IP”). After providing a brief overview of AI, we will analyze legal issues unique to AI, including access to data, patent requirements, open source licenses and trade secrecy. We will then suggest best practices for obtaining and preserving IP protection for AI-related innovations through the United States and European Union IP systems. By addressing these issues, the intellectual property system will be better positioned to do its part in unlocking AI’s immense potential.
Highlights
Humankind has always sought to solve problems
This paper will take a different direction, focusing on the current and near-future issues arising on the ground at the intersection of artificial intelligence (AI) and intellectual property (“IP”)
There is “general AI,” referred to as “strong AI.”[8]. General AI involves machines that can “perform any intellectual task that a human being can.”[9]. Unlike narrow AI, general AI may not be dependent on the dataset that feeds it, but instead may create its own abstract “thought process” to evolve upon its initial dataset to solve problems not necessarily identifiable at the outset of the system’s design
Summary
Humankind has always sought to solve problems. This impetus has transformed hunters and gatherers into a society beginning to enjoy the fruits of the fourth industrial revolution. As part of the fourth industrial revolution, and the increased computing power accompanying it, the long-theorized concept of artificial intelligence (“AI”) is becoming a reality This raises new issues in myriad fields—from the moral and ethical implications of replacing human activity with machines to who will own inventions created by AI. To provide improved certainty about whether an invention is patent eligible, the USPTO issued guidance in January 2019.35 As part of this guidance, the USPTO clarified its view that “a claim is not ‘directed to’ a judicial exception if [it] is integrated into a practical application of that exception.”[36] The guidance included a hypothetical claim covering “a computer-implemented method of training a neural network for facial detection”—i.e., an AI system designed to recognize faces:[37]. Patent offices and courts currently seem to support the eligibility of AIrelated functional applications using specific narrow AI and narrowly tailored implementations of infrastructural AI methods, but suggest that broadly claimed infrastructural AI methods will be per se ineligible for lack of specific technical character
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