Artificial Intelligence (AI) has become a crucial tool for organizations in various sectors, particularly in the generation of content and code by generative AI systems such as ChatGPT, GitHub Copilot, AlphaCode, Bard and DALL-E, among other tools. As the promise of incorporating these generative tools in the corporate setting is all but assured in the near term, there are a number of risks that need to be minimized as companies more forward. In particular, as AI applications grow increasingly sophisticated, they raise concerns with several forms of intellectual property (IP), such as patents, copyrights, and trade secrets. This article aims to discuss these issues and provide a sample company policy for using AI-generated content such as software code.
“It became obvious to me that IP was a lot more than laws and court decisions and regulations,” says Joff Wild of IAM on the latest episode of Clause 8. “IP was becoming a fundamental business asset, one that people could use to generate profits, build partnerships, go out into the markets, and raise cash. But no one was writing about that there was no coverage of that. So that said, to me, there was an opportunity to create something new.” Wild joins Eli from “across the pond” on this episode of the Clause 8 podcast to talk about founding, editing, and growing IAM.
The European Commission (EC) is at it again, threatening to regulate standard essential patent (SEP) licensing relationships, despite a lack of evidence that such regulation is appropriate. The economically harmful nature of this regulatory framework (and its prior draft) has been highlighted by many expert commentators, including contributors to IPWatchdog (see here, here, and here) and Truth on the Market (see here and here). Fortunately, the EC’s proposed regulatory framework is still open for public comments. Mindful of that opportunity, on May 23, Mercatus Center scholars Christine McDaniel, Satya Marar, and I filed a public interest submission with the European Commission, focusing on three sets of problems posed by the framework. I summarize our submission below.
On April 3, 2023, the UK Intellectual Property Office (UKIPO) issued much needed guidance on how digital goods and services – namely non-fungible tokens (NFTs), virtual goods, and services provided in the metaverse – should be classified for trademark purposes. NFTs The UKIPO defines an NFT as “a unique unit of data (the only one existing of its type) that…
IPWatchdog has learned from several sources this week that U.S. Court of Appeals for the Federal Circuit (CAFC) Chief Judge Kimberly Moore has filed a judicial complaint against Judge Pauline Newman under the Judicial Conduct and Disability Act. According to those who have seen the complaint, Moore is claiming she has probable cause to believe that Newman is unable to effectively discharge the duties of her office. Sources tell IPWatchdog that Chief Judge Moore primarily makes two separate allegations against Judge Newman. First, that Judge Newman is slow to issue opinions, which affects the administration of justice. Second, Moore has apparently heard stories from colleagues and others at the court that cause her to have concerns about Judge Newman’s overall ability to serve. Numerous staff and colleagues with knowledge of the complaint filed against Newman have contacted IPWatchdog to both confirm the filing of the complaint and to vehemently oppose the allegations being made about Judge Newman’s competence.
The U.S. Copyright Office (USCO) has announced a new statement of policy on “Works Containing Material Generated by Artificial Intelligence” that will be published in the Federal Register tomorrow, March 16. The statement comes following several recent cases that have tested the bounds of copyright protection for works generated solely or in part by AI authors. Most recently, the USCO held in a case involving a graphic novel, Zarya of the Dawn, featuring AI-generated images that the copyright registration would be limited to the text of the novel, which was the product of human authorship. The Office there explained that the “the text of the graphic novel ‘as well as the selection, coordination, and arrangement of the Work’s written and visual elements’ are protectable under copyright law” but that the images themselves were not.
The Copyright Claims Board (CCB) has issued its first final decision since it was established by law in December 2020, finding in favor of a photographer who claimed a lawyer infringed his copyright by displaying one of his photographs on his law firm website. David Oppenheimer’s case against Douglas Prutton was referred to the CCB by the U.S. District Court for the Northern District of California in April 2022, two months before the Board opened to receive claims. Oppenheimer said he discovered his aerial photograph of the Ronald V. Dellums Federal Building and U.S. Courthouse in Oakland, California on Prutton’s website in 2018, on a page titled “Where We Work.” Oppenheimer admitted that he copied and displayed the photograph without permission, but said his adult daughter actually found the photo and placed it on his site, and also argued fair use and unclean hands in defending his use of the work.
This week in Other Barks & Bites: The USPTO releases a blog post detailing the success of its Patent Pro Bono Program and announces a proposed pilot for micro entity applicants; NBA superstar LeBron James puts his weight behind Taco Bell in its battle to cancel the “Taco Tuesday” trademark; and Gilead and Teva sign a deal with pharmacies to avoid an antitrust suit.
The Dimopoulos Law Firm, a personal injury firm based in Las Vegas, Nevada, has filed a lawsuit against the NFL alleging that the league threatened to sue the firm for trademark infringement. The dispute arose after the firm hired three professional athletes, including Maxx Crosby of the Las Vegas Raiders, to appear in an advertisement that used the firm’s black and silver color scheme. According to the law firm, the advertisement did not feature any logos or trademarks of the NFL, the Raiders, or any other sports teams. Despite this, the NFL sent a cease-and-desist letter to Dimopoulos accusing the firm of unauthorized use of the Raiders’ marks.
In response to last week’s hearing of the House of Representatives’ Subcommittee on Courts, Intellectual Property and the Internet about the impact of artificial intelligence (AI) on copyright law, former Copyright Office General Counsel, Jon Baumgarten, submitted a letter this week to the Subcommittee expressing his concerns with the testimony of one of the witnesses, Sy Damle of Latham & Watkins, who also formerly served as U.S. Copyright Office General Counsel. The letter was published in full on the Copyright Alliance website.
The United States Supreme Court is soon poised to decide the fate of the enablement requirement, and the patent community is collectively holding its breath, wondering if the Court will strike a deathblow to the biopharmaceutical industry—simultaneously making all patents harder to get and even easier to challenge than they already are. The Supreme Court does not have a strong track record of objectively getting patent issues correct, at least not from a pro-innovation standpoint, although the Justices and their supporters likely would disagree. The undeniable truth, however, is that since the Supreme Court issued its decision in eBay v. MercExchange, virtually every decision of consequence to the patent system has made patent rights weaker and patents themselves easier to successfully challenge.
On Wednesday, April 12, IPWatchdog was first to break the news that U.S. Court of Appeals for the Federal Circuit Chief Judge Kimberly Moore has identified a judicial complaint against Judge Pauline Newman under the Judicial Conduct and Disability Act. In response to IPWatchdog’s report and subsequent reporting by other news outlets, the court on Friday issued a statement confirming the information provided by IPWatchdog’s sources and making the previously sealed documents public. According to the March 24, 2023, redacted Order identifying the complaint against Newman, Moore is claiming she has probable cause to believe that Newman is unable to effectively discharge the duties of her office “by reason of mental or physical disability,” citing to 28 U.S.C. 351(a).
Lenovo has been ordered to pay InterDigital a lump sum of $138.7 million for a global FRAND (fair, reasonable and non-discriminatory) license covering sales of cellular devices from 2007 to December 31, 2023, in the second full FRAND trial to be decided by the UK courts, following the landmark Unwired Planet case. (Interdigital Technology Corporation & Ors v Lenovo Group Ltd (FRAND Judgment – Public Version)  EWHC 539 (Pat).) In his redacted judgment published on March 15, Mr. Justice Mellor found that neither InterDigital’s August 2021 license offer (which amounted to $337 million) nor Lenovo’s counter offer (which comprised a lump sum of $80 million +/-15% for all sales in the six-year term to the end of 2023 with a full release for all past sales for no additional consideration) were FRAND or within the FRAND range.
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