Intellectual Property Considerations
The development and use of AI systems can raise a host of intellectual property issues, including questions around protecting AI innovations, ownership of AI-generated IP, and potential infringement risks.
Protecting AI Innovations
There are several forms of IP protection potentially available for AI systems and related technologies:
Patents
Certain AI innovations may be eligible for utility patent protection. The USPTO recognizes AI as a distinct category in its patent classification system and has examining units dedicated to AI applications. To be patentable, AI inventions must clear the subject matter eligibility hurdle under Section 101 of the Patent Act. Abstract ideas (like mathematical algorithms) are excluded from patent eligibility, so AI patent claims must be carefully drafted to emphasize technical improvements and practical applications. Disclosure requirements also pose challenges given the “black box” nature of many AI systems.
Copyright
Copyright can protect the original expression in AI source code and some visual/audio elements of AI-generated output. However, copyright does not extend to the functionality of the code itself. Copyright infringement also requires actual copying, which may be difficult to prove. Fair use defenses may apply to certain AI uses of copyrighted training data.
Trade Secrets
Trade secret law can provide strong protection for AI source code, algorithms, and training datasets, as long as the owner takes reasonable steps to maintain secrecy. Trade secrets are protected under federal and state law and can last indefinitely. However, independent discovery is a defense to misappropriation.