Intellectual Property Consideration for Artificial intelligence technology.

Everywhere you turn, you are hearing about some new form of Artificial Intelligence (AI). You may have even used an AI such as lensa or chatGPT but have you ever thought about the intellectual property (IP) implications? This article examines the various IP implications of AI.

There is no one definition of AI but in general, the term refers to technology that has the ability to simulate human intelligence.  The simulation is a result of software that is able to execute algorithms, resulting in desired outcomes. A hallmark of AI is that is able to analyze information and, among other things:

• -> Find patterns and predict future behavior
• -> Learn from the information entered and apply the knowledge to make tasks better
• -> Reach conclusions
• -> Automate certain functions

For those that create AI technology, AI may be protectable by any of the following IP protection: (1) a patent, (2) copyright, (3) trade secret.

Section 101 of the Patent Act (35 U.S.C. § 101) permits protection for new and useful processes, machines, and related improvements, with certain judicially imposed limitations. The US Patent and Trademark Office (USPTO) expressly recognizes AI through the designation of Class 706 (Data Processing: Artificial Intelligence) in its patent classification system. While “abstract ideas” are excluded from the scope of patent protection, if the patent contains additional elements that ensure the claims recite significantly more than an abstract idea, the patent can be recognized as an “inventive concept.”

Source code, visual elements and other aspects of AI are copyrightable. An original expression of source code can be protectable by copyright as a computer program under 17 U.S.C. § 101. Source code and object code are copyrightable as literary works if they are original and fixed in a tangible medium of expression, such as in print or in a computer hard drive or other electronic, magnetic, or optical medium. Protection may also apply to original expressions embodied in the software, but not functional aspects like algorithms, formatting, logic, or system design.

Trade secrets are another form of IP protection for AI. Trade secrets can protect IP such as source code, algorithms, and AI training data sets. Trade secrets are protected in the US at the federal level under 18 U.S.C. §§ 1831 to 1839, also known as the Economic Espionage Act. All states (except New York), as well as the District of Columbia and the US Virgin Islands, have adopted a version of the Uniform Trade Secrets Act (UTSA). States have adopted this model legislation and most of them adopted the model without changes.

Protecting intellectual property in the field of AI is crucial for businesses and individuals looking to monetize their innovations. Patent, copyright, and trade secret protection are all viable options for safeguarding AI-based creations. However, each form of protection has its own strengths and limitations, and it is important to consider the specific needs of your invention when deciding which form of protection to pursue. Ultimately, a comprehensive IP strategy that combines multiple forms of protection may be the best approach for maximizing the value of your AI-based innovations and we can help.

If you are an AI developer and would like help choosing the best form of IP protection, we encourage you to contact us for a confidential consultation. To schedule an appointment at SoCal and the District Law, call (213) 924-4191 or inquire online today. This blog post is written for educational and general information purposes only, and does not constitute specific legal or financial advice. You understand that there is no attorney-client relationship between you and the blog publisher. This blog should not be used as a substitute for competent legal advice from a licensed professional attorney in your state.