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November 9, 2023

USPTO and Copyright Office to Chart the Path Forward for AI and Intellectual Property


Section 5.2 of President Biden’s artificial intelligence (AI) executive order (EO) is directed to promoting innovation in order “[t]o develop and strengthen public-private partnerships for advancing innovation,” among other goals. These goals align with the U.S. Patent and Trademark Office’s (USPTO) AI and Emerging Technologies (AI/ET) Partnership, an ongoing cooperative effort between the USPTO and the AI/ET community on the intersection of AI and innovation and intellectual property policy. Subsection 5.2(c) directs the USPTO director to undertake specific actions relating to U.S. patent and copyright law.

Specifically, the EO directs the USPTO director, within 120 days, to publish guidance to patent examiners and applicants addressing "inventorship and the use of AI, including generative AI, in the inventive process, including illustrative examples in which AI systems play different roles in inventive processes and how, in each example, inventorship issues ought to be analyzed." The USPTO director also has 270 days to issue additional guidance on "other considerations at the consideration of AI and IP," that could include updated guidance on patent eligibility.

Additionally, the USPTO director shall consult with the U.S. Copyright Office director to issue recommendations to the White House on potential executive actions relating to copyright and AI. These recommendations shall address any copyright and related issues discussed in a forthcoming study from the U.S. Copyright Office, and are due within 180 days of that study or 270 days of the executive order, whichever comes later.

© Arnold & Porter Kaye Scholer LLP 2023 All Rights Reserved. This Advisory is intended to be a general summary of the law and does not constitute legal advice. You should consult with counsel to determine applicable legal requirements in a specific fact situation.