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Wednesday Oct 30, 2019

USPTO issues second Federal Register Notice on artificial intelligence and innovation

Blog by Under Secretary of Commerce for Intellectual Property and Director of the USPTO Andrei Iancu and Deputy Under Secretary of Commerce for Intellectual Property and Deputy Director of the USPTO Laura Peter

Director Iancu visits exhibits showcasing AI technologies at the “Artificial Intelligence: Intellectual Property Considerations” conference on January 31, 2019 at the USPTO. Shown above: a team from University of California, Berkeley demonstrates their patent visualization system, which enables a user to see and manipulate a three-dimensional landscape of similar patents. (Photo by Jay Premack/USPTO)

Article 1, Section 8, Clause 8 of the U.S. Constitution states that Congress has the power “[t]o promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries.” As artificial intelligence technologies (AI) quickly advance, the concepts of “authors and inventors” may not necessarily be confined to the human realm. From creating paintings and symphonies to generating advertising copy and recommending products to consumers, AI has already produced impressive artistic and commercial output. What impact will this have on our constitutionally founded IP system?

The USPTO has been examining precisely these issues. One step in this process was the publication of our Request for Comments on Patenting Artificial Intelligence Inventions in the Federal Register on August 27. We have extended the comment period to November 8, so please submit your patent-related responses if you have not already done so.

The fields of copyright, trademark, database protections, and trade secret law, among others, may be similarly susceptible to the impacts of developments in AI. Accordingly, the USPTO is just as interested in gathering public feedback on these issues. To facilitate that process, we issued a second AI-related Federal Register Notice on October 30 and comments will be accepted until December 16, 2019. There are thirteen questions in this notice, including:
Should a work produced by an AI algorithm or process, without the involvement of a natural person contributing expression to the resulting work, qualify as a work of authorship protectable under U.S. copyright law? Why or why not?

  • To the extent an AI algorithm or process learns its function(s) by ingesting large volumes of copyrighted material, does the existing statutory language (e.g., the fair use doctrine) and related case law adequately address the legality of making such use?  Should authors be recognized for this type of use of their works? If so, how?
  • Would the use of AI in trademark searching impact the registrability of trademarks? If so, how?
  • How, if at all, does AI impact trade secret law? Is the Defend Trade Secrets Act (DTSA), 18 U.S.C. § 1836 et seq., adequate to address the use of AI in the marketplace?
  • How, if at all, does AI impact the need to protect databases and data sets? Are existing laws adequate to protect such data?

We have already gleaned compelling insights from the feedback we received to date on the patent-related Federal Register Notice. But the various types of intellectual property protections work together symbiotically to create a comprehensive IP legal system that promotes creativity, development, job creation, and economic growth. As such, we are eager to hear your views on the impacts that other non-patent IP fields are or may be experiencing in the wake of AI.

However fast the pace of AI development has been until now, we firmly believe that this will pale in comparison to advances yet to come. The USPTO is committed to keeping pace with this critical technology in order to accelerate American innovation.

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