Will Biden’s AI Executive Order Give Clarity on the Issue of Inventorship?

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 New York Law Journal (subscription required) guest column entitled “Will Biden’s AI Executive Order Give Clarity on the Issue of Inventorship?” concerning President Biden's AI Executive Order and how AI output will be categorized as intellectual property. Mary and Andy seek to discern the rightful owner of AI-generated creations, ranging from text to physical product ideas, by examining the specifics of the Executive Order and current intellectual property laws. “Although current law has no definitive answers,” they write, “the USPTO has taken the position that AI-generated inventions cannot be patented. Thus far, the U.S. Supreme Court has declined to hear any cases on this issue. Many believe that there could be a middle ground in which an AI system could be named as a co-inventor with the creators of the AI system.” Mary and Andy find that the Executive Order offers more questions than answers relating to intellectual property. Since the order passes the responsibility of AI intellectual property to other government entities, there may be a longer wait for clarity and new legislation on the subject.