Comments to the U.S. Patent and Trademark Office on the Impact of Artificial Intelligence on Intellectual Property Law and Policy

Nigel Cory Daniel Castro January 10, 2020
January 10, 2020

Intellectual property (IP) is based on the idea that those who combine the spark of imagination with the grit and determination to see their vision become reality in books, technology, medicines, designs, sculpture, services, and more deserve the opportunity to reap the benefits of their innovation—and that this reward incentivizes more creative output. In the past, all works were entirely created by people. However, the advent of artificial intelligence (AI) has raised the prospect that some works are now the direct output of computer systems, including some operating autonomously. U.S. policy should protect the principle on which IP law is based, whether the works are generated by people or computer systems.

ITIF’s submission focuses on two key issues: the need for U.S. laws and regulations to recognize and protect AI-generated IP; and the need to assign ownership of AI-generated work to the person or organization that owns the AI. As AI-generated works are no different in kind than other works, there is no need for a special-purpose doctrine. But the creative potential of AI means that USPTO should consider policies that allow individuals and corporations to own IP for works without human authors. 

Central to USPTO’s consideration of IP and AI should be a pragmatic and realistic understanding of AI and its capabilities. While AI systems can be increasingly autonomous and creative, they still have a considerable way to go before they achieve the sophistication that many people imagine. However, this should not preclude USPTO from making policy changes to account for AI’s current capabilities, knowing that it’ll only get better and that the earlier U.S. laws and regulations account for AI’s impact on IP and innovation, the better the United States will be in the long term.