USPTO Publishes a Report on Artificial Intelligence and Intellectual Property Policy

On October 6, 2020, the United States Patent and Trademark Office (USPTO) published its report entitled Public Views on Artificial Intelligence and Intellectual Property Policy (the Report) addressing the impact of artificial intelligence (AI) technology across the intellectual property (IP) landscape. The Report summarizes nearly 200 submissions received by the USPTO in response to two requests for comments soliciting public input on (i) patenting AI-based inventions; and (ii) other IP protections for AI technology, namely copyright, trademark, database protections, and trade secret law. The submissions included comments from a broad range of experts, including foreign patent offices, IP practitioners, academia, and companies.

Overall, the majority of commenters agreed that existing US IP rights provide sufficient protections and are well equipped to handle emerging issues raised by AI. However, commenters were divided on whether new classes of IP rights should be introduced to address AI-based inventions. The Report further notes that while there is no universally accepted definition of AI, many commenters saw the current AI systems to be limited to perform specific tasks in well-defined domains.

With respect to patents, most commenters believed that the current framework for examining computer-implemented inventions is suitable to assess the patentability of AI-based inventions. Yet, distinct challenges exist around disclosure requirement for AI inventions as some operate in “black box” models. As for copyright, a work produced by an AI algorithm or process without human involvement would not qualify for copyright protection under US law. Most commentators responded that this should remain the law.

According to the USPTO’s press release, the Report represents the agency’s commitment to “work closely with the innovation community and experts in AI to encourage innovation and to strengthen the predictability and reliability of IP rights relating to AI technology”. The USPTO intends to use the Report to continue to explore ways to better understand IP rights in the context of AI technologies, which may include additional engagement with the public and guidance for stakeholders.

Summary By: Anna Troshchynsky