Confusion About Use of Artificial Intelligence and Ownership Could Impede Development, Suggests U.S. Report

A lack of consistency about how people see the positive and negative aspects of artificial intelligence, a disruptive and fast-growing technology that the U.S. and other nations are eager to embrace, is causing confusion that could impede its development.

A report released last month by the United States Patent and Trademark Office (USPTO) — which received surprisingly little media attention — looks at public perceptions of AI and intellectual property. It highlights the concerns about use of this powerful technology, which includes robotics and machine learning, and of which China believes leadership is a national priority.

The USPTO intends to use the report, “Public Views on Artificial Intelligence and Intellectual Property Policy,” to direct its focus to specific issues of concern.

‘Public Views of AI and IP Policy’ provides analysis of nearly 200 responses received from individuals and organizations to federal notices published in August and October 2019. The idea was to solicit public comments about patenting AI inventions and the impact of AI on other areas of intellectual property policy, writes the law firm Morrison Foerster

“The USPTO requested feedback on issues such as whether current laws and regulations regarding patent inventor-ship and authorship of copyrighted work should be revised to take into account contributions other than by natural [sic] persons.”

Highlights of the report include:

  • Non-Human Inventions. Commenters noted that there is no universally recognized definition AI. Some suggested that the USPTO revisit the question of non-human inventions when artificial general intelligence (AGI)—AI that mimics human intelligence—is a reality and not just “purely hypothetical.”
  • New Rights. Commentators were divided on the need for new intellectual property rights to address AI inventions. Those focusing on additional protections were focused mostly on data, with some suggesting that advances in AI should warrant more protection for data rights.

  • Human vs. Machine Inventors. Commenters agreed in large part that for now humans, not machines, must be inventors. Most agreed that only a natural [sic] person or a company, through an assignment, should be considered the owner of a patent or an invention, although some suggested extending ownership to those who train an AI process or own or control an AI system.
  • Impact on Patentability. Commenters were divided on whether the growing presence of AI would affect the legal hypothetical standard of a “person having ordinary skill in the art”, i.e. the reference used to evaluate whether an invention is obvious.
  • No Right to Copyright. The request for comment asked whether a work produced by an AI algorithm or process, without the involvement of a natural person contributing expression to the resulting work, should qualify as a work of authorship protectable under U.S. copyright law. Most said no, with one respondent noting that AI is a “tool, similar to other tools that have been used in the past to create works.”
    A minority of respondents suggested that creative works made by AI without human authorship should still be copyrightable—with the owner/controller of the AI system or the person who fixes the work in its final form as author. To most, authorship required “human creativity.”
  • Trade Secret Protection. The report also touches on the importance of trade secret law to protect AI innovations and big data. Commentators acknowledged the limitations of trade secret law where collaboration and innovation require data sharing and where the use of AI could enable the discovery of information historically maintained in secrecy.

A Cautious Approach

“Some people would like to see the AI confusion settle out very quickly, but I, I tend to favor a more cautious approach,” IBM’s Chief Patent Counsel, Manny Schecter, said on the BlueFoot podcast last week. “For one thing, we don’t even have accepted definitions of artificial intelligence.

“It would be very easy to start talking about solving problems and have conversations in which people still aren’t really talking about the same thing.We need to take a very cautious approach and start at a fundamental level and get basics like definitions resolved and determine what is acceptable internationally. Whatever reforms may be needed for AI and IP they need to be harmonized as much as reasonably possible.” is on the board of the Center for Intellectual Property Understanding and the IPO Education Foundation.

USPTO’s report on public AI perceptions can be found here.

Image source: USPTO;

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