The USPTO identified general themes in the received responses, such as the lack of a universally-recognized definition for “AI,” a general agreement that existing U.S. IP laws are calibrated correctly to address the evolution of AI, and the acknowledgement that artificial general intelligence (“AGI”) is at present merely a theoretical possibility that could arise in a distant future, and thus these comments were more properly directed to “narrow” AI (systems that perform individual tasks in well-defined domains). The comments also generally agreed that current “narrow” AI could neither invent nor author without human intervention.

With respect to responses to the RFC on patenting AI inventions, the majority of commenters agreed that AI is best viewed as a subset of computer-implemented inventions that can be evaluated based on existing frameworks for patent subject matter eligibility and disclosure requirements, though some commenters stressed that it may be difficult to meet the enablement requirement (i.e., to teach those skilled in the art how to make and use the claimed subject matter). Most comments also indicated that AI has the potential to affect the level of ordinary skill in the art, though numerous responses suggested that the existing legal framework is adequate to account for the impact of AI on that determination.

Responses to the RFC on copyright, trademarks, trade secrets, and data fields generally agreed that current IP laws are properly calibrated to handle the impact on AI on these types of IP, and many agreed that commercial law principles such as contract law might be able to adequately fill any gaps resulting from advances in AI. A number of comments also expressed concern that use of copyrighted material to “train” AI systems might violate the exclusive right of reproduction under 17 U.S.C. § 106(1), but it would be an open question whether such a use would be a non-infringing fair use. With respect to fair use, most commenters agreed that the doctrine is applied flexibly enough so that modifications are not required to adapt its application to the context of AI. Comments on trade secrets and data issues were wide-ranging, and raised issues such as bias, transparency, privacy, and whether advances in AI warrant an AI-specific IP system for data rights.

The report included several citations to BPLA’s November 8, 2019 comments on the patent-related RFC, including with respect to the impact of AI on patent inventorship and ownership, and the issuance of guidelines and examples related to patenting AI inventions by foreign patent offices.

The USPTO indicated that it will use the report in its continued exploration of measures it may take to bolster the understanding and reliability of IP rights for emerging technologies like AI.

The full report is available at https://www.uspto.gov/sites/default/files/documents/USPTO_AI-Report_2020-10-07.pdf.