Posts Tagged: "AI"

Copyright exits everywhere—from books on a library shelf to music playing on the radio, to the software running the electronic device on which you are reading this article. Copyright’s broad scope and extensive reach foster a varied and fascinating landscape of copyright cases. From cases involving the use of a celebrity photograph, animated dancing video game characters, to artificial intelligence (AI) infringement inquiries, the number and type of matters copyright touches is seemingly infinite. This provides an evergreen bounty of copyright cases to digest. The following highlights some of the top copyright decisions of 2023.

Unsurprisingly, the UK Supreme Court today ruled that Stephen Thaler’s AI Machine, DABUS, cannot be granted patents for inventions it autonomously created. While the Court suggested that questions such as whether inventions like DABUS’ should be patentable and if the meaning of the term “inventor” should be expanded are important ones that should be considered at a policy level, the present case was concerned solely with the interpretation of the present law, which clearly does not contemplate non-human inventors.  

On December 11, the Review Board of the U.S. Copyright Office (USCO) released a letter affirming the USCO’s refusal to register a work created with the use of artificial intelligence (AI) software. The decision to affirm the refusal marks the fourth time a registrant has been documented as being denied the ability to obtain a copyright registration over the output of an AI system following requests for reconsideration.

The U.S. Supreme Court’s Alice decision alleges that “…merely requiring generic computer implementation fails to transform that abstract idea into a patent-eligible invention.” And the Patent Eligibility Restoration Act (PERA) of 2023 alleges that “adding a non-essential reference to a computer by merely stating, ‘do it on a computer’ shall not establish such eligibility.” Clearly, it is assumed that “merely” doing something on a computer or “merely” saying “do it on a computer” is not a desirable thing in the eyes of some; a computer supposedly invalidates the inventive effort and “merely” doing something on a computer is undeserving of even consideration of a patent.

In September 2023, one man grabbed the authors’ attention with his astonishing story about defending his trademark registration from an opposition by professional trademark attorneys using ChatGPT. His months-long battle began in December 2022, less than a month after the public launch of the now infamous AI chatbot. Nine months later, Jamiel Sheikh — an entrepreneur, tech-guru, and adjunct professor — survived the pressure from formal proceedings and obtained a settlement from his opposer without spending a dime. As young trademark attorneys, we were horrified yet extremely curious about what he had done. This article is the result of speaking with Sheikh about his experience and the evolving needs and expectations of sophisticated legal service consumers.

Recently, Wen Xie argued on IPWatchdog that the U.S. Copyright Office (USCO) and the U.S. Patent and Trademark Office (USPTO) have reached different conclusions regarding “the creative and conceiving capabilities of machines,” which leads to intellectual property (IP) law being self-contradictory. According to Xie, the USCO presumes that artificial intelligence (AI) is creative, while the USPTO does not reach a similar conclusion regarding AI inventorship. I disagree.

In today’s high-tech landscape, the ancient fable of the goose that laid the golden eggs imparts profound wisdom. The farmer in that tale weighed the decision to continue accumulating wealth slowly by selling the golden eggs that his magical goose laid (one per day) or taking a risk by killing the goose to harvest all of the gold within it at once. (Ultimately, the farmer chose the murderous path only to discover the goose did not contain any riches.) Just as the farmer faced thorny decisions in the tale, modern tech executives grapple with complex choices between immediate returns and long-term potential while also maintaining a competitive edge. In the real world, an artificial intelligence (AI) system that can generate patentable outputs (such as designs for new drugs) stands as the metaphorical “goose” while the inventions it produces are analogous to the “golden eggs.” Steadfastly guiding this delicate dance is the patent attorney with expertise in AI technology.

Last week, the U.S. Copyright Office issued a notice of proposed rulemaking (NRPM) in the Federal Register as part of the triennial rulemaking process for exceptions to 17 U.S.C. § 1201’s prohibition against circumventing technological protection measures (TPMs) controlling digital access to copyrighted works. This proceeding is the ninth triennial Section 1201 rulemaking since passage of the Digital Millennium Copyright Act (DMCA) in 1998, and it starts with the Copyright Office intending to recommend renewal of all but one existing exemption. The Office also announced that it has received petitions for seven classes of newly proposed exemptions for which the agency will initiate three rounds of public comments.

Last week, the Writers Guild of America (WGA) reached a tentative three-year deal to resolve a writer’s strike following a labor dispute with the Alliance of Motion Picture and Television Producers (AMPTP). The deal was reached on September 27, 2023, after a 148-day strike, which was the second-longest in the union’s history. According to USA Today, the WGA’s leadership board has lifted the restraining order barring writers from returning to work, and its members will vote to officially ratify the agreement between October 2 and October 9. In a storyline that at one time would have been considered science fiction, a major point of contention between writers and producers was the use of artificial intelligence in the screenwriting process.

PERA is no doubt an ambitious bill. In terms of its design, the proposed legislation attempts to deal with each of the Supreme Court’s decisions in Alice, Mayo and Myriad, plus all of their progeny applications thereafter engendered by the Federal Circuit, the Patent Trial and Appeal Board (PTAB), all the way down to the U.S. Patent and Trademark Office (USPTO) examining corp. In a nutshell, the bill, if passed, would return us to a time when Bilski was the law of the land, which will no doubt be welcomed by many innovators.

Artificial intelligence (AI) is a field of computer science that creates software or models that mimic human reasoning or inference. Machine learning is a subset of AI which uses algorithms trained on massive amounts of data to allow the computer to learn with gradually improving accuracy without explicitly being programmed. The biopharmaceutical and healthcare fields produce massive amounts of data, including properties and characteristics of drug compounds, biological, genomic, and clinical data, efficacy of treatments, adverse events and risks, and electronic health records. The data may come from many sources, both public and proprietary. AI systems trained on such data can streamline and optimize the drug development process, including drug discovery, diagnosing diseases, identifying treatments and risks, designing clinical trials, and predicting safety and efficacy profiles, leading to increasing efficiency and reducing costs. 

Generative artificial intelligence (AI) platforms are already reshaping work life for many professionals, including those in the legal industry. On Day 3 of IPWatchdog LIVE 2023, a panel discussion titled “Impact of Generative Artificial Intelligence on Law and Innovation” explored ways that in-house legal teams can advance their company’s use of generative AI to improve productivity while balancing the need to protect confidential data and intellectual property.

A Pulitzer Prize-winning author and a number of Tony, Grammy and Peabody award winners are the latest to sue OpenAI for copyright infringement based on the way it trains its popular chatbot, ChatGPT. In July, comedian Sarah Silverman and authors Christopher Golden and Richard Kadrey brought a similar suit against OpenAI.

Earlier this week, the Review Board of the U.S. Copyright Office published a decision denying registration of a work created using the generative artificial intelligence (GAI) system, Midjourney, highlighting the complexities such technology is introducing to the U.S. copyright system…. The decision issued this week found that Jason M. Allen’s two-dimensional artwork, titled “Théâtre D’opéra Spatial,” contained “more than a de minimis amount” of AI-created content and that the AI content must therefore be disclaimed.

On August 30, the U.S. Copyright Office issued a notice of inquiry in the Federal Register seeking public comment on a range of issues related to the intersection of copyright law and artificial intelligence (AI). The recent notice is the latest action by the Office on the myriad of copyright issues that have been arising around the use of generative AI platforms including infringement liability for training AI systems on copyrighted content and human authorship requirements.