IP Challenges in the Age of AI

For human creators, the advent of AI poses distinct challenges to the existing IP framework.

As experienced intellectual property lawyers serving Seattle, we understand the unique challenges facing creators today. Need help securing your innovative ideas? Contact By Design Law online to schedule a consultation with a legal expert today.


Artificial intelligence (AI) is a polarizing technology. Some people regard it as the pinnacle of human achievement; others believe it will be our undoing. Still others think of AI as a free homework consultant, if they think of it at all.


No matter where you fall on the spectrum of public opinion, one thing is true: AI is forcing us to reevaluate how we define and value intelligence. Perhaps no other legal field demonstrates this fact as clearly as intellectual property (IP) law.


AI systems are designed to create, innovate, and even “think” in ways that we used to consider exclusive to humans. Advancements in AI pose particular challenges in the field of IP law, which exists to protect human creators of original works. In this article we will discuss some of those challenges, explore how they threaten the existing IP frameworks, and provide the most effective approaches to safeguarding intellectual property in the age of AI.


Any idea worth protecting is worth protecting well. If you need help establishing a comprehensive IP protection strategy, don’t worry—you don’t need to do it alone. Contact our law firm to
schedule an initial consultation with an experienced IP law attorney today.


Unpacking the Relationship Between AI and IP Law

The purpose of intellectual property law is to provide legal protections to creators and owners of original works. Although these works can be artistic in nature, such as pieces of music, literature, fine art, and audiovisual media, they don’t have to be. Intellectual property also includes inventions, software and computer programs, industrial designs, tradesecrets, and more.


To be eligible for copyright, patent, or trade secret approval, intellectual property must meet specific criteria. Although the requirements vary by category, most works must display the following to qualify for protection: originality and novelty, non-obviousness, and fixation in a tangible medium.


As AI technologies become more adept at generating artistic works, music, literary content, etc., it becomes increasingly important to bring AI into the IP fold. Doing so will require a robust legal framework capable o It may also require us to reimagine the core concepts of IP, particularly the foundational elements of copyright, patent and trade secrets.


The Dilemma of AI Authorship

The most popular and commonly used type of IP protection is copyright, as it automatically applies to a wide range of frequently created works. As this protection revolves around human authorship, copyright law is struggling with how to classify AI-generated works. The biggest question seems to be: Should an AI algorithm or its human creator be considered an author?


The U.S. Copyright Office
’s current stance on protecting AI-generated works is that only human authors can receive copyrights. However, experts point out that some AI-generated works are essentially sculpted by complex human-written algorithms. This dilemma challenges the “original work of authorship” requirement—a foundational tenet of copyright law.


AI, the…Inventor?

Similar to authorship in copyright law, traditional patent law revolves around the concept of an inventor. Although there are countless verified AI contributions to inventions , the legal system continues to grapple with how to acknowledge those contributions.


As of now, the U.S. Patent and Trademark Office does not allow AI to be listed as the sole inventor on a patent petition—that role must be filled by a human. However, the agency has sought input as to whether an AI system may be considered the primary inventor in the future.


The agency has also requested input on how AI may alter what is considered too “obvious” for patent protection, as its ability to analyze vast amounts of data is already shaping how we measure a non-obvious invention. The Biden administration has asked the agency to issue
new guidelines in Spring 2024 addressing AI’s relationship to the inventor role and offering clarification on the standard of non-obviousness.


AI, Trade Secrets, and Data Protection

AI algorithms and the data that power them are exceptionally valuable assets that deserve robust IP protections. Although safeguarding them falls under the purview of trade secret law, the enigmatic and ever-changing nature of AI algorithms can greatly complicate the application of traditional trade secret protections.


Acquiring the data needed to train AI systems can also result in unique IP challenges—and liabilities. In a recently filed
lawsuit against Microsoft and OpenAI , The New York Times has alleged that the defendants’ large-language models (LLMs) have copied millions of The Times’s articles, reviews, how-to-guides, opinion pieces and more, accounting for “billions of dollars in statutory and actual damages.”


Although The Times’s lawsuit is an extreme example, it does highlight the dangers of amassing large datasets for training AI systems before comprehensive legal guidelines have been established. In addition to questions about data ownership, there has been growing concern about the potential for AI to replicate and propagate biases in data, or to infringe upon existing IP rights.


Ultimately, successful navigation of IP in the AI age will require balancing ethical and policy considerations with the promotion of innovation. While overly lax laws could fail to protect creators’ rights, overly stringent IP could stifle AI development and advancements. By creating cohesive international IP frameworks, policymakers can help ensure multinational AI applications and innovations don’t result in complex legal scenarios.


By Design Law: Leading IP Attorneys in Seattle, WA

The relationship between IP law and AI technology is a complex, rapidly evolving field. Although the challenges associated with reworking traditional legal frameworks are significant, successful integration presents innumerable possibilities for AI advancement and legal innovation.


If you need help navigating the ways in which AI technologies may affect your intellectual property rights, or if you need help applying the most current, effective IP solutions to your situation, you don’t have to do it alone. The intellectual property attorneys at
By Design Law are here to help with your IP, business law, and data protection needs.


Ready to get started? Connect with us online to
schedule a consultation with a leading IP law firm in Seattle.


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