In a sure sign that the controversial issue of AI-created patents seems set to run and run, the US Patent and Trademark Office has amended an entry in the Federal Registry, giving notice that, having decided in August 2019 to gather “information about the impact of artificial intelligence (‘AI’) technologies on intellectual property law and policy”, the USPTO has now decided to “[extend] this inquiry to copyright, trademark, and other intellectual property rights impacted by AI”.

The revised notice invites the public to weigh in on a number of questions related to “the impact of artificial intelligence inventions” on “trademark, and other intellectual property rights impacted by AI patent law and policy”. According to the USPTO, these questions “are a preliminary guide to aid the USPTO in collecting relevant information to evaluate whether further guidance is needed and to assist in the development of any such guidance with respect to intellectual property policy and its relationship with AI”.

Questions include: Should a work produced by an AI algorithm or process, without the involvement of a natural person contributing expression to the resulting work, qualify as a work of authorship protectable under U.S. copyright law? Would the use of AI in trademark searching impact the registrability of trademarks? If so, how? Do any laws, policies, or practices need to change in order to ensure an appropriate balance between maintaining trade secrets on the one hand and obtaining patents, copyrights, or other forms of intellectual property protection related to AI on the other? How, if at all, does AI impact trade secret law?

US members of public have until 16 December 2019 to let their views be known.

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