Inventors may hire a technology licensing lawyer to protect their creations, but can artificial intelligence (AI) create legally protectable technology? The answer depends on several things, including how a company incorporates AI into the creative process and what laws govern the jurisdiction of the company’s location. It is only a matter of time before the law adapts and begins recognizing the role that tools such as ChatGPT, Midjourney, and others play in developing original intellectual property.
Using AI to invent and build new technology raises many legal and regulatory issues beyond intellectual property concerns. Businesses should be aware of these issues and determine how best to navigate around them to avoid legal and reputational risks.
How a Technology Licensing Lawyer can Help Businesses Use AI
In this article, we will discuss how a technology licensing attorney can help businesses understand their obligations related to the use of AI.
1. Recognizing potential legal issues associated with the use of AI
The legal framework that governs the use of AI is complex and may implicate data protection, data privacy, intellectual property, product liability, and regulatory compliance issues. A technology licensing attorney can help clients understand what laws and regulations require compliance. Here are some examples.
Intellectual property issues
AI systems raise various intellectual property issues when they are involved in the invention or creation of original works of authorship, resulting in added complexity when filing for patents, copyrights, and protecting trade secrets. For example, companies may develop AI algorithms that interface with real-world physical technology or design models where the creation was assisted by AI that are eligible for patent protection. Alternatively, generative AI tools may help create new technology or software source code.
Currently, U.S. law only permits the patent registration of inventions conceived of by natural humans. However, if AI merely contributes to an invention that a human leads, or if a human prompts AI to develop technology, then companies need to consider how to disclose AI’s participation in the creation process when it applies to intellectual property protection. In several recent rulings, mainly connected to Stephen Thaler’s DABUS AI system, the Federal Circuit stated AI could not be an inventor because it was not a “natural person.” At present, the law is unsettled. However, one straightforward solution is to allow AI inventions to be patentable, under which a person who uses an AI system as an extension of their inventiveness should be considered the inventor for having conceived the invention created using the AI system.
Another concern is whether AI may unintentionally infringe on others’ intellectual property as it builds new technology. AI learns by studying existing content contained on the web or in mass databases. It may incorporate some pre-existing protected content in the technology it creates, inadvertently infringing on another’s property and creating ownership and licensing headaches for companies.
A technology licensing lawyer can help clients protect their AI-related intellectual property by conducting comprehensive patent searches, filing applications, and negotiating licensing agreements. They can also recommend best practices for incorporating AI in their applications with the U.S. Patent and Trademark Office.
Data protection and data privacy concerns
AI systems typically ingest vast swaths of data to make predictions and decisions. Businesses must comply with data protection and privacy laws that may apply to the data they collect and use in their AI systems.
A technology licensing lawyer can help clients understand their obligations under data protection and privacy laws, such as the General Data Protection Regulation (GDPR) in the European Union or the California Consumer Privacy Act (CCPA) in the United States. These laws may restrict how AI engines can use individuals’ personally identifiable information as they develop products, creating thorny issues that businesses must consider.
Product liability issues
A technology licensing lawyer can help clients assess their potential liability related to the use of AI and develop strategies for mitigating that liability. For example, suppose a system powered by AI makes a decision that harms a user. In that case, the company that developed the AI system may be liable for any damages caused by the decision. This circumstance may involve negotiating indemnification clauses or limitations on liability in contracts related to the use of AI.
2. Improving regulatory compliance when including AI in the technology development process
Depending on a company’s industry and location, various regulations may apply to the use of AI, such as industry-specific regulations, data protection regulations (as discussed above), and consumer protection regulations.
Industry-specific regulations
Different industries may have specific regulations that apply to the use of AI. For example, the use of AI in the healthcare industry may be subject to patient privacy and data protection regulations. A technology licensing lawyer with experience in a specific sector can interpret the rules that apply to the use of AI in a client’s industry and anticipate potential issues that require a legal strategy.
Consumer protection regulations
Consumer protection regulations may also apply to the use of AI. For example, the Federal Trade Commission (FTC) requires companies to follow guidelines governing how they use AI in consumer products and services. A technology licensing lawyer can explain what consumer protection regulations apply to a company’s use of AI and help businesses develop effective compliance strategies.
3. Negotiating contracts with technology that incorporates AI
Negotiating contracts related to the use of AI is another critical area where a technology licensing lawyer can assist clients. Contracts related to the use of AI may involve various legal issues, such as intellectual property, data protection, liability, and regulatory compliance. Suppose employees or third-party contractors used generative AI to develop technology on a company’s behalf. In that case, the company may need to outline the ownership of the technology and detail who will be responsible if any infringement claims arise. Businesses may also need to consider whether they need to obtain a license with the owner of any generative AI or data sets they use to develop the technology.
A technology licensing lawyer can help clients include suitable provisions in these contracts to ensure their protection in the event of any legal or regulatory issues related to the use of AI.
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