Open Issues At The USPTO And Beyond After Biden AI Order

Chair of Olshan’s Intellectual Property Law Group and Co-Chair of the firm’s Brand Management & Protection Group Mary Grieco and Olshan Co-Managing partner, Chair of the firm's Advertising, Marketing & Promotion's Group and Co-Chair of the firm’s Brand Management & Protection Group Andrew Lustigman published a Law360 (subscription required) article entitled “Open Issues At The USPTO And Beyond After Biden AI Order” In the article, they discuss how President Biden’s Executive Order relating to AI could potentially make it harder for businesses to protect AI-created inventions. “Rather than providing answers to how AI should be used in keeping with these principles, the order requires numerous government agencies to develop their own principles and guidelines around the use of AI as AI pertains to those agencies,” Mary and Andy write. “Currently, the USPTO’s position is that AI-generated inventions are incapable of acquiring patent protection because the patent laws define an ‘inventor’ as a natural person.” For businesses that depend on making software, film, and music, using AI to create such works could prove irresistible. However, if a work is created entirely by AI, a business may not be entitled to any copyright protection at all, and thus unable to prevent unauthorized use. “Businesses should also be aware of the very real possibility of AI-generated disinformation or deepfakes and how they can be used for fraud and theft,” they explain. “Employees will need to be trained to recognize when AI is used to target a business for nefarious purposes, and systems will need to be developed to recognize and prevent AI-generated attacks on business systems or data.”