JiNan is recognized worldwide for her expertise in intellectual property. She is the co-founder of Magic Number and founder of Neo IP.
AI—and particularly ChatGPT—are top of mind, leaving businesses with a lot of important questions to answer: What value is AI generating? Where are the boundaries? Will AI eliminate doctors? What about trust and AI eliminating bias? Will AI supplant human invention?
Along with everything else, these technologies have interesting ramifications for intellectual property (IP). What do its capabilities imply for how we should be thinking about IP and the rules of IP? In this article, I will provide guidance on what an AI tool may offer founders, inventors and entrepreneurs who are looking to file patents in the context of devising their overall IP strategy.
What Businesses Should Know About IP And ChatGPT
IP protection safeguards products and services from imitation, attracts and secures funding from outside investors, and promotes the overarching commercial success of any enterprise. It is an invaluable asset, an idea made tangible through patents, trademarks, copyrights, service marks and trade secrets.
Because of these factors, designing an IP strategy should be top of mind early on for any founder, inventor or entrepreneur and can yield substantial economic benefits. Patents are evidence of innovation, and investors love innovation. Intellectual property is an asset class of its own, and IP assets can be sold, too.
So where do you look for IP? And can you look for it in the content being generated by ChatGPT?
Gartner analyst Bern Elliot notes that the model for ChatGPT “is trained on a corpus of created works, and it is still unclear what the legal precedent may be for reuse of this content if it was derived from the intellectual property of others.”
Joe McKendrick explains in Forbes that ChatGPT “tends not to include citations or attributions to the sources and IP used or synthesized.” McKendrick continues with questions about who can copyright or claim ownership of AI-generated works, whether it’s the requester who used a tool to generate text, the creator of the tool—in this case, OpenAI—or someone else.
McKendrick cites Margaret Esquenet, a partner at Finnegan, Henderson, Farabow, Garrett & Dunner, LLP., who explains that for a work to enjoy copyright protection under current U.S. law, “the work must be the result of original and creative authorship by a human author.” Esquenet cites a 2022 decision showing that the U.S. Copyright Office will not register a work created by an autonomous AI tool.
In short, it seems that AI-generated output does not appear to be IP protectable or registrable, though some nebulous boundaries about IP and authorship still need to be defined and worked out by the courts.
How Businesses Can Manage This Evolving Discussion
One important thing to track as you consider using AI for IP is whether you are using AI in a competitively advantageous way. It may be possible to protect this competitive advantage with IP rights of some form or another, though it will be important to speak with an attorney about your company’s specific situation.
To determine if AI is being used in a competitive advantage way, companies should require employees to disclose how they’re using AI in their workflow. For instance, if AI is just being used to speed up workflow, outputs from AI may not be IP protectable. If creating a competitive advantage that is novel and not obvious, pursuing IP may be possible.
Otherwise, from a business perspective, as these boundaries are defined and worked out, ChatGPT, like any other AI tool in the context of generating an idea worthy of IP, should probably remain just that: a tool to jump-start the creative thinking toward a viable solution to the world’s challenges that would render a patent.
ChatGPT and other generative AI are useful because they can generate outputs immediately. It can likely be used to accelerate the path to IP. It can also likely be used to accelerate research and comparisons to prior art, stimulate differentiation and new combinations of known things. In other words, ChatGPT can be used to leverage efficiency and productivity of basic activities, but perhaps not innovation, inventiveness and creating assets through IP.
The information provided here is not legal advice and does not purport to be a substitute for advice of counsel on any specific matter. For legal advice, you should consult with an attorney concerning your specific situation.
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