AI tools can be transformational for technology development, but there is nuance when it comes to IP protection and copyright practices. Some basic information can support future protection claims.
The tsunami of generative artificial intelligence (AI) tools has transformed technology development. But while it may be beneficial for rapid advancement, these tools also challenge the traditional practices of protecting technologies with traditional intellectual property (IP) rights — especially understanding who or what creates new technologies. The lines of authorship and inventorship are becoming increasingly blurred as AI tools play a significant role in the creation of new technologies and creative works.
Among the uncertainty are concrete, positive developments. First, new technologies invented with AI assistance can be patented. Second, new creative works created with AI assistance can be copyrighted. Finally, attorneys and technology transfer professionals already have the tools to address whether new technologies or new creative works are protectable.
Patent Inventorship
In the patent realm, AI cannot be named an inventor. But inventions using AI can be patentable if a “natural person” made a significant contribution. Therefore, a U.S. patent application must include a human inventor who made a "significant contribution" to the invention. This significant contribution must be more than merely entering a basic prompt into an AI tool.
Patent attorneys and courts identify "significant contributions" using a longstanding set of legal requirements. These factors require an inventor to:
- Contribute meaningfully to an invention’s conception or reduction to practice. Inventors must actively participate beyond priming inputs, or observing or analyzing outputs.
- Make a significant contribution relative to the entirety. Inventor’s inputs should be substantial and impactful, not minor tweaks, simple prompts, or adjustments.
- Do more than explain existing concepts. Inventors must contribute something new, not just restate established knowledge.
Inventors must do more than merely identify problems, recognize AI outputs, or intellectually dominate the AI. Patent attorneys will assess inventorship claim by claim to understand who or what contributed to each claim. AI contributions do not negate human inventorship, just as one joint inventor does not negate the inventorship of another. For example, an inventor could significantly contribute protectable AI components or models. But each inventor must satisfy each of the above factors.
Copyright Authorship
New AI tools have also thrown copyright authorship into question. But the copyright realm can also use existing frameworks to protect works created with the assistance of generative AI. Human authorship remains the cornerstone of copyright protection.
Academic works created by researchers using AI tools must have human contributions to be eligible for copyright protection. Works that are solely generated by AI, without any creative input or intervention from a human, are ineligible. IP attorneys can use existing analytical frameworks to determine whether a work has sufficient human contribution for copyright protection.
The key to determining copyright eligibility of an AI-assisted work is the nature and extent of a human’s contribution. A human must make creative choices that shape the final expression. Merely describing a potential work — to an AI tool or another person — will fall short. Providing prompts into current AI tools will also likely fall short.
Humans must make contributions that are perceptible in AI-assisted outputs. These contributions can include creative selection, coordination, arrangement of material, or creative modifications of the outputs. A human must be the "mastermind" behind the work.
The issues of AI inventorship and authorship will focus on the level of human involvement in the creative process on a case-by-case basis. Collaboration between researchers and IP attorneys will be crucial for leveraging new tools among the evolving IP protection landscape for AI-assisted inventions and creative works.