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 186

Al Around the World:

Intellectual Property Law Considerations
and Beyond
Kathleen Wills''

You have full-blown conversations with Apple's Siri, Amazon's Alexa, or

Microsoft's Cortana. You dream about being in the self-driving car when you
get frustrated sitting in traffic, guided along your fastest route by your preferred
mobile navigation application. You rely on UberEATS to find a new meal option
and then track your dinner delivery. All of these moments in your day are only
possible through the emergency of artificial intelligence, AI, which have seamlessly
transformed your everyday life.
AI is a data-driven technology that can predict, classify, or output results for use
in various industries and applications. AI is subdivided into different aspects: the
(1) algorithm that carries out the processing, (2) training methodology and dataset
behind the "intelligence" of AI, and (3) application that provides the tangible real-
world use. 2 Given the importance and market value of AI, one needs to constantly
ask: what legal protections are available to protect my AI applications? How to
protect AI is a question that has sparked a global debate because companies want
certainty in such protection before investing in and developing the technology.
This article will discuss, at a high-level, the intellectual property, contract,
and privacy law considerations for global protection of AI applications and how
protection of AI may be influenced by U.S. politics.

" Kathleen Wills is a patent attorney licensed to practice in Maryland, the District of Columbia, and before the
United States Patent and Trademark Office. Many thanks to T.H. for encouraging me to write and J.E. for the valuable
suggestions. The information in this article does not, nor is it intended to, constitute legal advice, and has been made
available for general information purposes only. If any views are expressed in the article, they are those of the author and
not necessarily the views of their clients or colleagues.
2
Aastha Uppal, DraftingAl Patents: Challengesand Solutions, IPWatchdog (Aug. 21, 2021), https://www.ipwatchdog.
com/2021/08/21/drafting-ai-patents-challenges-solutions/id=136929/.

102 J. Pat. & Trademark Off. Soc'y 186 (2022)

VOL 102, NO. 2 Wills 187

CONTENTS

Introduction ......................................... 187

Intellectual Property Rights Implicated by AI ................ 190
Patent Law ............................................. 190
U.S. Patent Law and AI ............................... 190
A Global Look at Patent Law and AI ..................... 193
Trade Secret Law ......................................... 194
U.S. Trade Secret Law and AI ........................... 194
A Global Look at Trade Secrets and AI .................... 195
C opyright Law ........................................... 195
U.S. Copyright Law and AI.............................196
A Global Look at Copyright Law and AI .................. 197
Tradem ark Law .......................................... 198
A Global Look at Trademark Law and AL ................. 199
WIPO 's Take on AI .................................... 199
Contract and Privacy Legal Protections..................... .201
Conclusion .......................................... 202

INTRODUCTION

The U.S. National Institute of Standards and Technology defines AI technologies

and systems as "compris[ing] software and/or hardware that can learn to solve
complex problems, make predictions or undertake complex problems that require
human-like sensing. . ."3 This all-encompassing definition is not precise enough to
warrant certain intellectual property ("IP") protections.
In early January 2019, the United States Patent and Trademark Office ("USPTO")
organized a conference on IP and AI. 4 The agency solicited comments from
stakeholders, associations, corporations, and individuals on patenting AI inventions
and other legal protections such as copyright, trademark, and trade secret law. The
USPTO then published two reports. The first report, "Public Views on Artificial
Intelligence and Intellectual Property Policy," emphasized a "continued exploration
of other measures it may take to bolster the understanding and reliability of IP rights
for emerging technologies, such as AL." 5 Commenters provided the USPTO with

3Inventing AI: Tracingthe diffusion of artificial intelligence with U.S. patents, USPTO (October 2020), https://www.
uspto.gov/sites/default/files/documents/OCE-DH-AL.pdf.
4The WIPO Conversation on Intellectual Propertyand Artificial Intelligence, WIPO, https://www.wipo.int/about-ip/
en/artificial_intelligence/conversation.html (last accessed Feb. 24, 2022).
s Public Views on Artificial Intelligence and Intellectual Property Policy, USPTO, https://www.uspto.gov/sites/default/
files/documents/USPTO_AI-Report_2020-10-07.pdf (October 2020).
188 Al Around the World J PTOS

a series of challenges in protecting AI inventions, such as the lack of a universally

recognized definition of AI. The report demonstrated another challenge: commenters
were divided between those who believe the current U.S. IP laws-supplemented
with contract law-are sufficient to protect AI from those that believe greater data
rights are needed.6 WIPO held a second conversation on IP and AI in July 2020 and
a third conversation on November 4, 2020 to discuss the feedback received.
In October 2020, the Office of the Chief Economist prepared a report at the
USPTO in collaboration with other offices at the agency. The report, titled "Inventing
AI: Tracing the Diffusion of Artificial Intelligence with U.S. Patents," 7 mentions that
AI is "increasingly important for invention" and "has the potential to fundamentally
change how people perceive the world around them and live their daily lives." 8 It also
recognized that AI technologies are comprised of several component technologies
including knowledge processing, machine learning, planning/control, evolutionary
computation, and more.9
To IP practitioners, the scope of intellectual property law coverage as it pertains
to computer-generated works and AI applications is uncertain. Patents, for example,
are generally not available for certain facets of AI such as software. 0 Nor is it clear if
patent protection is available if an inventive concept is generated using AI. This can
lead to uncertain business strategies for companies seeking legal protection for these
technologies and has the ability to impact an entire age of innovation.
Cue the White House to enter the chat. Pursuant to the National AI Initiative
Act of 2020, which passed as part of the National Defense Authorization Act of
2021, the White House Office of Science and Technology Policy formally established
the National AI Initiative Office on January 12." The National AI Initiative Office
will oversee and implement a national AI strategy and act as a central hub for
coordination and collaboration by federal agencies and outside stakeholders across
government, industry and academia in AI research and policymaking. The Act's
fifteen-member National Security Commission submitted a final report on March 1,
2021, to Congress and the President stating, "America must lead the change" and
explaining how IP rights and patent eligibility requirements set by U.S. courts have
created uncertainty and discouragement.
There are various opportunities for the current administration to use and make
a lasting impact on the intellectual property landscape, particularly regarding
Section 101 (or subject matter eligibility of patent law) reform. As this article will
discuss, subject matter eligibility is a looming challenge to inventors when it comes
to protecting their AI. Reforming Section 101 with AI in mind amid digital age

6
J.
Tessa Schwartz et al., In the Public Eye: USPTO Issues Report on AI, MORRISON FOERSTER CLIENT ALERT (October
12, 2020), https://www.mofo.com/resources/insights/201012-uspto-report-on-ai.html.
7
Andrew A. Toole et al., Inventing AI: Tracing the diffusion of artificialintelligence with U.S. patents, U.S. PATENT AND
TRADEMARK OFFICE - IP DATA HIGHLIGHTS (Oct. 2020), https://www.uspto.gov/sites/default/files/documents/OCE-DH-AI.
pdf.
sId. at2.
9
Id. at 3.
1 Andrea Weiss Jeffries et al,, Protecting Artificial Intelligence IPL Patents, Trade Secrets, or Copyrights?, JONES
DAY COMMENTARIES (January 2018), https://www.jonesday.com/en/insights/2018/01/protecting-artificial-intelligence-ip-
patents-trad.
"H. Mark Lyon et al., Artificial Intelligence And Automated Systems Legal Update (1Q21), GBSON DUNN (April 23,
2
2021), https://www.gibsondunn.com/artificial-intelligence-and-automated-systems-legal-update-lq 1/.
VOL 102, NO. 2 Wills 189

discussions could greatly increase investment in the research and development. As

for other aspects of IP law, current Vice President Harris has been an outspoken
enforcer of United States trade secrets in her career and, the recently nominated
U.S. trade representative, Katherine Tai has emphasized the importance of foreign
cooperation with enforcing trade secrets.'2
With the U.S. Court of Appeals for the Federal Circuit a consistent key player
in the development of intellectual property law, particularly patent law, the Biden
Administration had the opportunity-for the first time in six years-to fill a vacancy
at the court when Judge Wallach announced his decision to assume senior status.
With that opportunity, President Biden nominated Tiffany Cunningham for the
Federal Circuit, who was confirmed by the U.S. Senate in June 2021. Cunningham's
almost 20 years of patent litigation experience involves representing large technology
and pharmaceutical brand companies and has stated to Senator Coombs that patent
eligibility is an area that "deserves attention." 3 Next, with Judge Kathleen O'Malley's
decision to retire in 2022 in order to advocate on patent policies instead of taking
senior status, the Federal Circuit is the first federal appellate court during the Biden
Administration to have two vacancies to fill. On February 9, 2022, the U.S. Senate
confirmed Biden's nominee, Judge Leonard Stark of the District of Delaware, to
the Federal Circuit. As widely recognized among patent practitioners and litigators,
Judge Stark's docket included numerous patent eligibility motions-leading to his
initiation of "101 Days" to hear such motions-although he has commented that he
will not invalidate every patent motion with a Section 101 question. 4
Finally, there remains the role of the Director of the Patent and Trademark Office,
vacated by former Director Andrei Iancu, whose farewell speech emphasized the issue
of Section 101. On October 26, 2021, President Biden nominated Kathi Vidal to the
role of PTO Director whose background in patent litigation also includes a clerkship
at the Federal Circuit. Interestingly, Vidal has typically represented large technology
defendants in her private practice and Senators Leahy and Tillis have expressed a desire
to hear her plans for patent system reform.' 5 After her Senate confirmation hearing,
Senator Tillis became convinced that Vidal would be committed to reform patent
eligibility laws and understood the role of strong IP rights to the nation's economy."
These various opportunities for change in the leadership of the intellectual
property landscape are intertwined with patent eligibility and AI. Each of these

' See, e.g., Robert Farley, How Harris Will Influence IP in the Biden Administration, THE DIPLOMAT (Jan. 20, 2021),
https://thediplomat.com/2021/01/how-will-harris-influence-ip-law-in-the-biden-administration/; Senate Finance
Committee Confirmation Hearing for Katherine Tai to be United States Trade Representative, SIFMA, https://www.
sifma.org/resources/general/senate-finance-committee-confirmation-hearing-for-katherine-tai-to-be-united-states-trade-
representative/ (last accessed Feb. 24, 2022).
1 Emer Simic, On Tiffany Cunningham's Appointment to the CAFC: An Impeccable Candidate and a Rallying Call
for More Diversity in IP, IPWATCHDoc (July 11, 2021), https://www.ipwatchdog.com/2021/07/11/tiffany-cunninghams-
appointment-cafc-impeccable-candidate-rallying-call-more-diversity-ip/id=135366/.
1 Adam Hess, Judge Leonard P. Stark Will Bring a Wealth of PatentExperience to the Federal Circuit, IPTECHBLOG
(Nov. 10, 2021), https://www.iptechblog.com/2021/11/judge-leonard-p-stark-will-bring-a-wealth-of-patent-experience-
to-the-federal-circuit/.
'" Dani Kass, Biden Names Winston & Strawn's Vidal for USPTO Director, LAw360 (Oct. 26, 2021), https://www.
law360.com/ip/articles/1428776.
16 Ellen McDermott, Tillis Backs Vidal for UPSTO Head, Dubbing Her a `Visionary Leader', IPWATCHDOG (Jan. 5,
2022), https://www.ipwatchdog.com/2022/01/05/tillis-backs-vidal-uspto-head-dubbing-visionary-leader/id=142473/.
190 Al Around the World J PTOS

areas wield great influence on which intellectual property matters rise to the
forefront of visibility and face impending change. There is no better time to
discuss legislative reform on a hot IP topic like the present while global discussions
about what IP protections are well suited or need modification to protect AI have
already begun. It is important for the industry-practitioners, clients, students,
even potential political candidates to these roles-to be informed of the moving
pieces in each of these affairs, as these high-level decisions and discussions will
greatly influence the practice and landscape of intellectual property law as it
pertains to AI.

INTELLECTUAL PROPERTY RIGHTS IMPLICATED BY Al

There are several countries discussing AI protections and challenges, some of
which are not discussed in this article, including the leaders of the various intellectual
property offices from Latin American countries that gathered in December 2020 to
discuss AL.A 7 Discussed in the next section of this Article are key considerations for
each type of intellectual property right as discussed in the U.S. and abroad. Yet, even
with these consistent worldwide discussions about the role and scope of intellectual
property and legal considerations as it relates to or protects AI's works, there is
not-and may never be-a unified approach.

Patent Law

A patent is a type of intellectual property right given to inventors that includes

the legal right to exclude others from making, using, or selling that invention in
exchange for disclosure of the invention in a patent application. The patent system
is about fostering technological innovation, often romanticized by an invention
story of an individual or family trouble-shooting a problem, and finding a novel
answer that becomes widely successful and gives them financial independence. 8
Given the right of exclusivity, a patent can greatly incentivize research and
development, whether it be at the private level, public or government level, or
even through multidisciplinary collaborations. With the rise of AI technology in a
digital age, where does patent law stand about incentivizing the Fourth Industrial
Revolution?

U.S. Patent Law and Al

The USPTO continues to explore the role that the IP patent system can-or
should-play in protecting AI technologies from both the who can be an inventor
and what is patentable subject matter angles.

"Artificial Intelligence and Intellectual Property: IP and the 4.0 Industry, IPICEY LATIN AMERICA, https://ipkey.eu/
en/latin-america/activities/artificial-intelligence-and-intellectual-property-ip-and-40-industry (last accessed on Sept. 13,
2021).
" Innovation and Intellectual Property, WIPO, https://www.wipo.int/ip-outreach/en/ipday/2017/innovationand_
intellectual_property.html (last accessed Feb. 24, 2022).
VOL 102, NO. 2 Wills 191

Back in 1976, the percentage of patent applicants who were active in AI was 1%,
a number that increased to 25% by 2018.9 The number of all patent applications
relating to AI has also increased; in 2002, 9% of applications before the USPTO
related to AI and in 2018, that share was 16%.20
There are some examples of granted patents directed to AI technologies. For
example, U.S. Patent No. 10,043,516 describes an invention that answers questions
and responds to spoken command. Intuit Inc.'s U.S. Patent No. 7,685,082 describes
an algorithm that uses a pre-defined "knowledge base" to automatically detect
accounting errors.2 ' U.S. Patent No. 8,892,487 to IBM Corp. describes a device for
efficient information processing that mimics synapses between neurons. U.S. Patent
No. 7,657,494 to Chevron USA Inc. predicts available petroleum reserves, and U.S.
Patent No. 8,930,178 to Cincinnati Children's Hospital Medical Center uses text to
build an ontology.2 2
Despite these examples of patent protection for protecting AI, the USPTO has
routinely rejected patent applications made by AI, i.e., where an AI system was
listed as the inventor.23 For example, an AI system called DABUS, shorthand for
"Device for the Autonomous Bootstrapping of Unified Sentience," was named as an
inventor on a patent application that was subsequently rejected for failing to have
a valid inventor. In an appeal brief regarding the DABUS application rejection that
was filed on February 3, 2022, the USPTO urged the Federal Circuit to uphold the
Virginia federal judge's ruling that AI cannot be listed as an inventor on a patent
application. 24 Interestingly, Stephen Thaler, the human actually filling the allegedly
DABUS-developed inventions, recently won rulings in Australia and South Africa
such that an AI can be an inventor in those countries.2 s
The U.S. Constitution's Article I, Section 8, Clause 8, often referred to as the IP
26
Clause, grants exclusive rights to "authors and inventors." The patent statutes were
contemplated with an inventor as a natural person, reinforced by federal case law on
the issue, leading some practitioners to believe that legislation is needed before patent
law can protect the inventions conceived of by AI inventions.2 7 Practitioners debate

1 Inventing AI: Tracing the diffusion of artificial intelligence with U.S. patents, supra note 6.
20 James W. Soong, Artificial Intelligence and Subject Matter Eligibility in U.S. Patent Office Appeals, LJN
(August 2021), https://www.lawjournalnewsletters.com/2021/08/01/artificial-intelligence-and-subject-matter-eligibility-
in-u-s-patent-office-appeals/?slreturn=20210803171028 (citing Inventing AI, Tracing the diffusion of artificial
intelligence with U.S. patents, supra note 6).
' Supra note 6.
22 U.S. Patent No. 10,043,516 abstract (filed Dec. 20, 2016); U.S. Patent No. 7,685,082 abstract (filed Apr. 28,

2006); U.S. Patent No. 8,892,487 abstract (filed Dec. 30, 2010); U.S. Patent No. 7,657,494 abstract (filed Oct. 12,
1990); U.S. Patent No. 8,930,178 abstract (filed Jun. 20, 1995).
23 Emily J. Tait et al., Reboot Required: Artificial Intelligence System Cannot Be Named As An Inventor Under

U.S. Patent Law, USPTO Says, JONES DAY COMMENTARIES (May 2020), https://www.jonesday.com/en/insights/2020/05/
reboot-required-artificial-intelligence-system-cannot-be-named-as-an-inventor-under-us-patent-law-uspto-says. The case
is Thaler v. Hirshfeld, 21-cv-2347, on appeal before the Federal Circuit at the time this Article was written.
24
Thaler v. Hirshfeld, 21-cv-2347, Appellee Br. 13-14.
Adam Lidgett, USPTO Tells Fed. Cir. Only Humans Can Be Inventors, LAw360 (Feb. 4, 2022), https://www.law360.
25

com/articles/1461934?e_id=e71d1dbe-4ec8-4d3f-8709-7610e4c105fa; see also Ed Conlon, DABUS: South Africa issues

first-ever patent with AI inventor, ManagingIP (July 29, 2021), https://www.managingip.com/article/blsx9mh1m35rd9/
dabus-south-africa-issues-first-ever-patent-with-ai-inventor; Rebecca Currey & Jane Owen, In the Courts: Australian
Court finds AI systems can be "inventors", WIPO MAGAZINE (Sept. 2021), https://www.wipo.int/wipomagazine/
en/2021/03/article_0006.html.
26
US. CONST. art. I, S8, cl. 8.
27 Matthew Johnson, Carl A. Kukkonen III, and Emily J. Tait, Artifcial Intelligence: The Growing Role of AI on
192 Al Around the World J PTOS

whether this constitutional protection should be read to refer to human inventors

or encompass the broadest scope is an aspect of AI inventorship under patent law.
At least one author highlights that patents have been granted on technologies
designed exclusively by software when AI's role in the development was not
disclosed to the USPTO.28 This may not be surprising considering AI systems
demonstrate intelligence-they can be designed to replicate human intelligence and
neural networks. With major patent offices in Europe, Japan, Canada, and Australia
also denying patent when there is AI inventorship, practitioners are exploring if the
person who either creates the AI, contributes to one or more aspects of the invention,
instructs the AI, inputs limitations before the problem solving, or owns the AI can be
an inventor to protect the AI's creations.29
The other challenge inventors face when seeking patent protection for AI is the
patentable subject matter hurdle. One requirement that inventors must demonstrate
in order to obtain a patent is subject matter eligibility under 35 U.S.C. $ 101.
In Alice Corp. v. CLS Bank Int'l, 573 U.S. 208 (2014), the Supreme Court held
that merely implementing an abstract idea with a computer is not sufficient to
become an inventive concept. In Ex parte Hussain, Appeal No. 2020-005406
(PTAB Feb. 18, 2021), the representative claim expressly recited that the machine
learning algorithm was "trained to infer characteristics about a user from variable
values generated from specific types of data." 30 The Patent Trial and Appeal
Board ("PTAB") found that, without additional technical details, the algorithm's
abstract nature rendered it ineligible for patent protection. 3' The PTAB's desire for
"implementation details" also led to ineligibility in Ex parte Costello,32 where the
representative claim involved computerized fraud detection using machine learning
and network analysis.
Yet AI is proving useful for the USPTO to do its job, e.g., the USPTO began using
AI to assist in patent classification and searchers for its examiners. 33 The Office also
used AI to identify AI-related patents that have come through the system since the
1970s in order to strengthen policy formulation and providing empirical knowledge.34
In the "Inventing AI: Tracing the diffusion of artificial intelligence with U.S. patents"
data highlight, the Office of the Chief Economist identified issued patents and pre-
grant publications published between 1976 and 2020 that contain at least one AI
technology component. AI components include knowledge processing, speech,
AI hardware, evolutionary computation, natural language processing, machine

Patents, JONES DAY INSIGHTS (April 2020), https://www.jonesday.com/en/insights/2020/04/artificial-intelligence-the-

growing-role-of-ai-on-patents.
2 W. Michael Schuster, Artificial Intelligence and Patent Ownership, 75 WASH. & LEE L. REV. 1945, 1948 (2018).

29 Katarzyna Szczudlik, Can Artificial Intelligence be the author?, NEWTECH (Feb. 15, 2018), https://newtech.law/en/

can-artificial-intelligence-be-the-author/; see also Dorothy Auth, Howard Wizenfeld, and Dov Hirsch, IP Law 2021
Mid-Year Trends - Looking Ahead, BLOOMBERG L. (July 2, 2021), https://news.bloomberglaw.com/us-law-week/ip-law-
2021-mid-year-trends-looking-ahead.
s Supra note 19.
3, Id.
32 Id., citing to Ex parte Costello, No. 2021-000658 (P.T.A.B. June 7, 2021).
s Say Sujintaya, IP Trends for 2021, BALKER MCL(ENZE (Mar. 26, 2021), https://www.bakermckenzie.com/en/insight/
publications/2021/03/ip-trends-for-2021.
3 Sissi Cao, A.I for A.L-US Patent Regulator Uses Machine Learning to Analyze Complex A.I Patents, OBSERVER
(Aug. 27, 2021), https://observer.com/2021/08/us-patent-office-artificial-intelligence-research-uspto/.
VOL 102, NO. 2 Wills 193

learning, vision and planning and control. After the implementation of the American
Inventor's Protection Act between 1999 and 2002, AI patent applications increased
by more than 100 percent, rising from 30,000 to more than 60,000 annually. 35

A Global Look at Patent Law and Al

The European Patent Office has also mentioned that AI could assist with prior
art patent searches36 but has refused two patent applications that designated AI as an
inventor with the register for both applications stating: "[t]he designation of inventor
does not meet the requirements laid down in Article 81 and Rule 19 EPC." 37 In France,
computer programs are not inventions and there is mention that some applicants
avoid mentioning AI's role in patent applications to avoid refusal. 3 8 France's Patent
Guidelines, put forth by France's National Institute of Industrial Property, specifically
discuss AI, noting that as a computer-implemented mathematical model, it does not
constitute an invention. The guidelines also caution individuals against using creative
terminology such as "artificial neural network" to get around the lack of technical
character from AL.39 On the other hand, the guidelines specifically outline various
types of AI applications that are sufficiently technical, including computer vision,
speech recognition, robotics, predictive analysis, and word processing. This provides
applicants some additional clarity about how to argue eligibility.
In Israel, the world's leader in AI patent applications per capita, the Prime
Minister's Office has formed a specially commissioned task force and is working
on publishing recommendations regarding the government's program and policy
on AI, which will likely involve ethical and institutional considerations. 40 At the
Israel Patent Office, AI implemented inventions are comparable to any software or
computer-implemented inventions in terms of eligibility. The Israel Patent Office's
practices compare favorably to Office the practices of the European Patent Office
and USPTO for other issues of patentability.4
'

In China, the February 1, 2020 Patent Examination Guidelines focused on

emerging technologies of AI and Big Data.42 Patent Law according to Article 2.2 is
for inventions, defined as "a new technical solution relating to a product, a process
or improvement thereof," which must be a solution to resolve a technical problem
using technical means and achieve a technical effect. As it currently stands, Article

s Inventing AI: Tracing the diffusion of artificial intelligence with U.S. patents, supra note 6.
36
Supra note 32.
3
Andreas Holzwarth-Rochford et al., IP Protectionof Artifcial Intelligencein Europe: Tailor-MadeSolutions Required,
JONES DAY COMMENTARIES (April 2020), https://www.jonesday.com/en/insights/2020/04/ip-protection-of-artificial-
intelligence-in-europe; see also European Patent Register, https://register.epo.org/application?number=EP18275163#_
blank; https://register.epo.org/application?number=EP18275174.
3 Loic Lemercier, Evolution of IP protection for artificialintelligence in France, JDSuPRA (Mar. 29, 2021), https://
www.jdsupra.com/legalnews/evolution-of-ip-protection-for-3173168/.
3 Grant of patentsand utility certificates: Guidelines for patent and utility certificate applications, INPI (Oct. 2019),
https://www.inpi.fr/sites/default/files/guidelines_forpatentexamination-inpi.pdf at 75.
40 Michael T. Renaud et al., Emerging Legal Trends AI: Can Israel Join the U.S. and Europe as a Leader in AI
Protections?, MNTZ (June 10, 2019), https://www.mintz.com/insights-center/viewpoints/2231/2019-06-10-emerging-
legal-trends-ai-can-israel-join-us-and-europe.
4, Id.
42 Lin Li et al., ProtectingAI-related innovations in China, MANAGING IP (June 26, 2020), https://www.managingip.
com/article/b 1m92lbg3th9w0/protecting-ai-related-innovations-in-china.
 194 Al Around the World J PTOS

25 excludes AI algorithms of mathematical rules from patent protection as "rules or

methods for mental activities" that do not meet the required criteria.43 The Chinese
2020 Guidelines specifically mention that AI algorithm features are taken into
consideration during the examination process but does not answer whether those
features will be treated as technical ones.
In India, algorithms and mathematical models are not eligible for patent
protection unless it produces a technological effect or contribution. Under Section
3(k) of the Indian Patent Act, mathematical and business models as well as computer
programs are per se unpatentable.4 4
Despite the uncertainty facing inventors and companies about which IP
protection - if any-will safeguard their AI technology, patent applications filed for
AI are rising across the globe. The United States experienced the largest number of
AI applications in the world and Israel is the world's leader in AI patent applications
per capita. 45 Governments will have to provide recommendations on where and how
to protect their AI if the answer does not lie within patent regimes.

Trade Secret Law

Trade Secrets are intellectual property rights pertaining to confidential

information. Unauthorized use or disclosure of such confidential information can
be criminally and civilly actionable as misappropriation. According to the American
Bar Association, trade secrets are particularly suited to technologies that are "rapidly
replaced by new innovations" such as AI. 4 The nature of AI development can be
at odds with trade secret law. How can programmers keep their AI a secret when
they use open-source software and fundamental components of technology like the
operating system and program interface?

U.S. Trade Secret Law and Al

In the U.S., trade secret protection comes from the Federal Defend Trade Secrets
Act ("DTSA") that passed in 2016 and state-implemented versions or models of the
Uniform Trade Secrets Act. 47 Under the DTSA, 18 U.S.C. $ 1839(3)(B), protection
applies for a secret that has "actual or potential" value derived from the secrecy.48
Companies who take sufficient steps to maintain confidentiality and secrecy of their

3
Id.
° Lynn Lazaro, India: Artificial Intelligence in the World of IP, MONDAQ (Feb. 10, 2020), https://www.mondaq.com/
india/patent/892134/artificial-intelligence-in-the-world-of-ip.
Hausman,
and
AI
Protecting
to
crucial
is
IP
ML
competitive
remaining
domain,
booming
in
(June
Bhud
CALCALST
E
27, 2021), https://www.calcalistech.com/ctech/articles/0,7340,L-3911017,00.html.
4 Jessica Meyers, Artificial Intelligence and Trade Secrets, ABA, https://www.americanbar.org/groups/intellectual_
property law/publications/landslide/2018-19/january-february/artificial-intelligence-trade-secrets-webinar/ (last
accessed Sept. 18, 2021).
° The DTSA does not preempt existing state law regimes, allowing inventors to bring parallel claims for
misappropriation. Attorneys, however, have noticed that there are pros and cons to each remedy. For example, equitable
relief might be more readily available under state law regimes than in federal court, and appropriation before 2016 (i.e.,
before the DTSA passed) should best addressed under state law.
4 Stan Gibson & Samuel Buchman, How to Safeguard AI Technology: Patentsversus Trade Secrets, IPWATCHDOG (Feb.
25, 2021), https://www.ipwatchdog.com/2021/02/25/safeguard-ai-technology-patents-versus-trade-secrets/id=130247/.
VOL 102, NO. 2 Wills 195

proprietary information, including AI algorithms, can find protection under the law
and various types of redress for misappropriation. However, reverse engineering
and independent discovery is permitted under trade secret law and is not actionable
as misappropriation. Thus, one cannot protect the AI components if a competitor
comes to the same result by other means. While AI might currently be difficult to
reverse-engineer, this can rapidly change in the future.
As the USPTO continues to engage in discussions about the type of legal
framework that will or should protect AI, for now trade secret law might provide
more immediate protection to companies investing in such innovations. AI can more
easily qualify for trade secret protection than meet the standards of patent eligibility
or creativity and originality implications of copyright law, discussed below.

A Global Look at Trade Secrets and Al

There are international agreements related to intellectual property rights, such

as TRIPS or the Trade-Related Aspects of Intellectual Property Rights and the Paris
Convention for the Protection of Industrial Property. Some countries like Australia
only provide trade secret protection by complying with TRIPS, which is through the
equitable doctrine of "breach of confidence" and breach of contract.49 There, trade
secret protection is a viable protection for AI considering that trade secret's role in
allowing software owners to enjoin third parties from copying or using valuable
source code to create or develop new software.
In the European Union, there is additional protection under the Trade Secrets
Directive, although it requires companies to take "reasonable steps" to keep their
secrets confidential. Given the essence of machine-learning implementations in AI, one
author cautions against the ambiguity revolving around "reasonable steps" in the AI
context, particularly as a competitor might be able to steal this IP right by determining
50
the "secret weight values of a neural network" that the AI is founded on.
Meanwhile, China has amended its laws in a way to encourage inventors to
pursue trade secret protection for AI. The Anti-Unfair Competition Law of China
in 2019 was revised such that trade secret holders have a larger basket of rights to
enforce and a new Article, Article 32, to reply on for meeting the burden of proof.

Copyright Law

Copyright is a type of intellectual property right that protects original works of

authorship, which is implicated when an individual attempts to seek ownership of
AI applications because an algorithm is involved in creating the works.

4 Nina Fitzgerald et al., Got a secret? Can you keep it? Using trade secrets to protect AI, AI: UNDERSTANDING THE IP
(May 21, 2020), https://www.ashurst.com/en/news-and-insights/insights/can-you-keep-a-secret/.
s Jason Raeburn, Vulnerable AI systems and trade secrets - is technology moving the goal posts for legal protection?,
02 84
BALKER MCICENZE (May 2020), https://viewpoints.bakermckenzie.com/post/1 g 1/vulnerable-ai-systems-and-trade-
secrets-is-technology-moving-the-goal-posts-for.
s Lin Li et al., ProtectingAI-related innovations in China, MANAGING IP (June 26, 2020), https://www.managingip.
com/article/b 1m92lbg3th9w0/protecting-ai-related-innovations-in-china.
196 Al Around the World J PTOS

U.S. CopyrightLaw and Al

Since copyright law is often used to protect computer program code in the U.S.,
many are looking to copyright to protect AI applications. But copyright protection
for computer programs can be complex; the structure, sequence, and organization
of a program can receive narrow protection but data created by judgment and
structured with creativity can be copyrightable. 2 What remains unsettled is whether
a computer program's output is copyrightable.
Many ask whether copyright law should protect works generated by AI or works
created by another tool. In the United States, copyright eligibility rests on whether
the work is creative with sufficient originality.53 One author points out that various
creative and original works are already being created by AI such as portraits, local
news articles, music, novels, poems, musicals, and editing photographs. 54 Another
author mentions that intellectual property law was designed to reward human novel
ideas, even asking whether humans could be "blocked out of content creation" by
the sheer pace that AI can generate content.55 Some suggest that copyright authorship
should be redefined to include non-human authors. 56 Another author distinguishes
works generated by AI programs with human assistance or guidance from programs
where AI is acting independently.57 For the former, it is similar to existing precedent
that allows a photographer to own a copyright in a photo she took, despite using
the camera or phone in order to capture and create the image. For the latter, the
Copyright Office has stated that it will not register works produced by a machine
or mechanical process that operates without creative input from a human author.58
Testing the bounds of intellectual property rights for AI, Stephen Thaler requested
that the Copyright Board reconsider, for a second time, its refusal to register DABUS's
two-dimensional artwork titled "A Recent Entrance to Paradise" that he filed an
application for in November 2018. The U.S. Copyright Office refused, ruling that
59
"human authorship is a prerequisite to copyright protection."

5 David Rabinowitz, As Artificial Intelligence Expands, So Do Legal Protections, BLOOMBERG L. (Aug. 20, 2021),
https://news.bloomberglaw.com/ip-law/as-artificial-intelligence-expands-so-do-legal-protections.
s See generally for a discussion about copyright eligibility and liability: Kathleen Wills, That Tattoo on Her Shoulder:
The Intersection of Copyright Law & Tattoos, 7 TEXAS A&M J. PROP. L. 4, 622-662 (2020-2021); Kathleen Wills, The
Tattoo That Sings: Soundwave Technology and Copyright Law, 23 TUL. J. TECH. & INTELL. PROP. 35-59 (Spring 2021).
The role of AI in copyright law will greatly affect the music industry, as AI tools are being used by studios and artists to
experiment with existing materials and create new music-or intermediate copying. See Daniel A. Schnapp and Alexis P.
Grilli, IntermediateCopying, Artificial Intelligence and Best Practicesfor Counseling Music Clients in an Evolving Legal
and Technological Landscape, NEw YORK L.J. (April 9, 2021), https://www.law.com/newyorklawjournal/2021/04/09/
intermediate-copying-artificial-intelligence-and-best-practices-for-counseling-music-clients-in-an-evolving-legal-and-
technological-landscape/.
5
Andres Guadamuz, Artificial intelligence and copyright, WIPO MAGAZINE (Oct. 2017), https://www.wipo.int/wipo_
magazine/en/2017/05/article_0003.html.
5
Todd Carpenter, If My AI Wrote this Post, Could I Own the Copyright?, THE SCHOLARLY KITCHEN (Feb. 12, 2020),
https://scholarlykitchen.sspnet.org/2020/02/12/if-my-ai-wrote-this-post-could-i-own-the-copyright/.
56
5
Italin Hristov, Artificial Intelligence and the Copyright Dilemma, 57 IDEA 431, abstract (2017).
KLalin Hristov, Artificial Intelligence and the Copyright Dilemma, 57 IDEA 431 (2017).
58Id., referring to $ 313.2 of the U.S. Copyright Office, Compendium of U.S. Copyright Office Practices $ 101 (3d
Ed. 2021).
s Copyright Review Board, Re: Second Request for Reconsiderationfor Refusal to
Register A Recent Entrance to Paradise (Correspondence ID 1-3ZPC6C3; SR # 1-710038701), https://www.copyright.
gov/rulings-filings/review-board/docs/a-recent-entrance-to-paradise.pdf (Feb. 14, 2022)
VOL 102, NO. 2 Wills 197

Another answer on whether AI or works generated by AI is copyrightable could

come from licensing aspects of copyright, whether under contract law or the work-
for-hire doctrine in copyright law (that employers-employees use), such that a human
author or programmer could receive transferred rights. Perhaps, one day, society will
get to the point where we ask whether the AI program would want to transfer its
rights to a human author, as compared to letting it fall within the public domain or
owning the rights itself. Any millennial reader will remember the pivotal scene from
the Disney Channel Original Movie PIXEL PERFECT (Disney 2004) where Loretta, the
AI hologram-turned-star of "The Zetta Bytes" band, programmed by the teenage
male protagonist, is being bought by a company and stands to lose her individuality
and choice. Ultimately, the "good side" wins, finding a way to free Loretta into
the Internet such that she can keep her mind, personality, and will as a sentiment
person-and not as a tool of the recording company.
Despite the converging discussions and positions taken, the same concerns that
exist in copyright law about having a human inventor affect eligibility for protection
under patent law. The U.S. Copyright Office and USPTO hosted a joint conference
in October 2021 about this topic, titled "Copyright Law and Machine Learning for
AI: Where Are We and Where Are We Going?"

A Global Look at CopyrightLaw and Al

One author hypothesizes that countries of "common law tradition" following a

utilitarian theory, such as Canada, U.K., Australia, and New Zealand, might be more
amenable venues for granting copyright protections for AI-created works. 0 Already,
the U.K., Ireland, and New Zealand offer "copyright-like" protections to computer-
generated works, evidenced in part by the U.K.'s Copyright Designs and Patents Act
of 1988 that creates a legal fiction for computer-generated works where there is no
human author but has some form of human invention. Section 9(3) states that "the
author shall be taken to be the person by whom the arrangements necessary for the
creation of the work are undertaken.""1
The United Kingdom and European Union have each published reports similar
to the USPTO on the patent and copyright interrelationship between AI and IP.
In September 2020, the U.K.'s IP Office published a call for reviews on the policy
implications for the topic. 2 Commenters and the U.K. government agreed that
copyright law adequately protects software but if additional legal protections were
needed for AI, it should not come from copyright law. While the U.K. government
will consult further on whether copyright should be limited to human-created works,
it raised the issue of "false attribution," where the divide between human-created
and AI-created works becomes blurred. 3 The European Parliament published a

60 Brigitte Vezina and Brent Moran, Artificial Intelligence and Creativity: Why We're Against Copyright Protection
for AI-Generated Output, CREATIVE COMMONS (Aug. 10, 2020), https://creativecommons.org/2020/08/10/no-copyright-
protection-for-ai-generated-output/.
61 Copyright, Designs and Patents Act, 1988, c. 48 $ 9(3) (U.K.).
62 Rahul I~apoor & James Mulligan, Artificial Intelligence and Intellectual Property: Transatlantic Approaches,

JDSuPRA (Nov. 27, 2020), https://www.jdsupra.com/legalnews/artificial-intelligence-and-19187/.

63 Sarah Neil, April AI Report 2021 - Copyright, AA THORNTON, https://www.aathornton.com/april-ai-report-2021-
198 Al Around the World J PTOS

report on IP rights for the development of IP technologies and, in February 2020,

the European Commission published a White Paper on AI Policy that emphasized
the importance of creating an "operational and fully harmonized regulatory
framework." 64 Respondents to the European Commission do not believe current
legislation to be fully sufficient to protect AI in the market. 65
In June 2018, the government in India defined a national policy on AI in a paper
titled, "National Strategy for Artificial Intelligence #AIforAll." 6 6 Consistent with
copyright law policies all over the globe, practitioners in India debate whether an
AI's work would satisfy the originality requirement for such protection because
AI compiles already-existing information and lacks the legal status to be held
accountable for infringement challenges.
On the other hand, in China, one litigated case held that works created with
assistance from AI are eligible for copyright protection since the human inventors
sufficiently personalized the selection and arrangement of the software. 67

Trademark Law

The less talked-about type of intellectual property to be impacted by AI is

trademark law. Trademark law involves the decisions and potential confusion a
consumer might face when purchasing goods or selecting services. Information is key
when consumers make those decisions, processing what is available or recommended
to them. Thus, trademark law is impacted by changing consumer spending habits
that, today, involves social media branding and marketing by "influencers."
Amazon's Alexa can qualify as an "influencer" because it recommends products to
a consumer. The first product recommended could be Amazon's own product, the
second could be the brand leader, and the third could be based off the customer's
previous purchasing decisions. The AI's algorithms recommend certain products on
online retail platforms, filtering for the consumer's unique habits.68 In fact, some
authors in Harvard Business Review are discussing the change from a "shopping-
then-shipping" model to a "shipping-then-shopping" model where AI has curated
predictive retail. 69 This shift in retail shopping has the potential to implicate who will
be considered the "average consumer" in a trademark infringement proceeding and
certain legal concepts such as "post-sale confusion" and comparative advertising.

copyright/ (last accessed Sept. 13, 2021).

64 White Paper on Artificial Intelligence - A European approach to excellence
and trust, European Commission,
COM(2020) 65 Final (Feb. 19, 2020).
6s Rahul L~apoor and James Mulligan, Artificial Intelligence and Intellectual Property: Transatlantic Approaches,

JDSuPRA
66 (Nov. 27, 2020), https://www.jdsupra.com/legalnews/artificial-intelligence-and-19187/.
Ramit Rana and Apurva Bhutani, Artificial Intelligence:Policy, IPR and law in India and other countries worldwide,
THE DAILY GUARDIAN (July 9, 2020), https://thedailyguardian.com/artifical-intelligence-policy-ipr-and-law-in-ndia-and-
other-countries-worldwide/.
67 Lin Li et al., ProtectingAI-related innovations in China, MANAGING IP (June 26, 2020), https://www.managingip.
com/article/b1m92lbg3th9w0/protecting-ai-related-innovations-in-china, referring to Tencent v. Shanghai Yingxun
Technology Co. Ltd, Yue 0305 Min Chu No. 14010 (Shenzhen Nanshan Dist. People's Ct. December 24, 2019) (China).
68 Lee Curties and Rachel Platts, Trademark Law Playing Catch-up with Artificial Intelligence?, WIPO MAGAZINE (June
2020), https://www.wipo.int/wipomagazine_digital/en/2020/article_0001.html.
69 Id., citing Ajay Agrawal et al., Prediction Machines: The Simple Economics of Artificial Intelligence, HARVARD
BUSINESS REV. (2018).
VOL 102, NO. 2 Wills 199

This shift also narrows the available information or options for a consumer, which
may implicate liability: who is liable for the purchase of counterfeit goods-
the consumer, the entity behind AI, or both? 70 A court may ask: Did AI bias the
consumer's decision and can AI generate biased recommendations?

A Global Look at Trademark Law and Al

Cases about AI in a retail context of trademark infringement have already

appeared overseas, as seen in Louis Vuitton v. Google France, L'Oreal v. eBay,
and Coty v. Amazon before the Court of Justice of the European Union.7' In Louis
Vuitton, the court held that Google was not liable for trademark infringement unless
it played an active role in the keyword advertising system of Google's AdWords
system. In L'Oreal, the court applied similar reasoning and found that eBay could
not be liable for trademark infringement for the sale of counterfeit goods on its
online marketplace unless it was actively aware of the activity.72 If, however, the
AI is involved in any potential infringing activity, liability may be found on behalf
of the AI provider. This reasoning was used against Amazon in a U.K. trademark
infringement suit because the use of trademark-triggered links to its website did
not encompass the branded product referenced, causing consumer confusing about
whether the on sale products were sold by the brand. 73

WIPO's TAKE ON Al
The World Intellectual Property Organization ("WIPO") is the global forum
for IP services, policy, information and corporation, and an agency of the United
Nations. With 193 member states, which includes the leading countries as ranked
by the International IP Index 20221, it is important to understand WIPO's response
to intellectual property law and AI. According to Francis Gurry, the former Director
General of WIPO, "AI is a new digital frontier that will have a profound impact on
the world." 74
On November 4, 2020, WIPO held its third "conversation" on IP and AI.
Several issues were discussed including how to define AL.75 WIPO's Secretariat
prepared a revised issue paper on the topic from these conversations. 76 There, WIPO
acknowledges that policy makers must start to "decipher the wide-ranging impacts

0
J Kevin R. Casey, Artificial Intelligence in the Trademark World, IP APPEAL, Fall 2020.
" Lee Curtis & Rachel Platts, Trademark Law Playing Catch-up with Artificial Intelligence, WIPO MAGAZINE (June
2020), https://www.wipo.int/wipomagazinedigital/en/2020/article_0001.html, referencing Louis Vuitton Malletier SA
v. Google France SARI, Case C-236/08 (CJEU Mar. 23, 2010), Coty Germany GmbH v. Amazon Servs. Europe Sarl,
Case C-567/18 (April 2, 2020), and L'Oreal SA et al. v. eBay Int'l AG, Case C-324/09 (CJEU July 12, 2011).
z Id.
J3Id., referencing Cosmetic Warriors Ltd. and Lush Ltd. v. Amazon.Co.Uk. Ltd. et al., 2014 EWHC 181 (Ch), Case
HC 12C00385, High Court of Justice, Chancery Division Intellectual Property (Feb. 10, 2014).
Artificial Intelligence and Intellectual Property: An Interview with Francis Gurry, WIPO MAGAZINE (Sept. 2018)
https://www.wipo.int/wipomagazine/en/2018/05/article_0001.html (last accessed Sept. 18, 2021).
' Rahul ILapoor and James Mulligan, Artificial Intelligence and Intellectual Property: TransatlanticApproaches,
JDSuPRA (Nov. 27, 2020), https://www.jdsupra.com/legalnews/artificial-intelligence-and-19187/.
76 WIPO Conversation on Intellectual Property (Ip) and Artificial Intelligence (AI): Second Session, WIPO (May 21,
2020).
200 Al Around the World J PTOS

of AI," and mentioned that WIPO has started engaging the aspects of AI specific to
IP. WIPO adopted a definition of AI: a discipline of computer science that is aimed
at developing machines and systems that can carry out tasks considered to require
human intelligence, with limited or no human intervention.77 This, however, is
different from "AI-generated" terminology that refers to AI output without human
intervention.
WIPO highlights various topics of patent eligibility and AI. First, WIPO
mentions the ongoing discussion of ownership and inventorship, noting that
when AI functions as a tool that assists human inventors, it likely follows current
computer-implemented inventions where the human inventor remains the owner.
WIPO left unanswered the question of whether an AI application could ever be listed
as an inventor on a patent application or if alternative legal protections can exist
if not. WIPO then acknowledged that computer programs are per se unpatentable
inventions, although computer-implemented inventions are patent eligible under
Article 52 of the European Patent Convention. As the concept of nonobviousness has
arisen regarding AI and patent eligibility in the United States, so too has the concept
arisen before WIPO. WIPO acknowledges commentator questions about whether
the traditional standard, if an invention would be obvious to a person skilled in
the relevant art of the invention, can still apply to non-human acts of invention.
Commentors also asked whether AI-generated content now qualifies as prior art.
Second, WIPO tackled ownership of AI applications in a copyright law context,
noting that "[i]f AI-generated works were excluded from eligibility for copyright
protection, the copyright system would be seen as an instrument for encouraging and
78
favoring the dignity of human creativity over machine creativity." Further, WIPO
notes that copyright infringement for AI applications necessitates a discussion of the
underlying data used in the algorithms such as the scope of authorization to use such
data. The discussion of the data used in AI must also consider biometrics, the use of
human personal information, as well as "deep fakes" that generate simulations of a
person's likeness and attributes. As is being drafted and implemented on a state-by-
state framework in the United States, WIPO agrees that non-IP legal rights such as
privacy laws must be put in place regarding the use of data. 79
Third, trademark law is impacted in slightly different ways by AI than patent
and copyright law. WIPO left unanswered several questions like how will AI affect
brand recognition, the likelihood of confusion, and responsibilities of AI's actions?
Finally, similar to the United States, trade secrets remain an attractive IP avenue for
inventors to pursue given the crucial role that data plays with AI applications.
A subsequent WIPO conversation took place on September 22-23, 2021, entitled
"Data - Beyond AI in a Fully Interconnected World." The conversation addressed
"the Fourth Industrial Revolution" and how data and the digital age are changing
the world. 80

7
" Id.
B Id. at 7.
79
Kathleen Wills, Privacy Law Considerationsof AI and Big Data - In the U.S. & Abroad, George Mason University,
CENTER FOR INTELLECTUAL PROPERTY X INNOVATION POLICY, httpS://Cip2.gmu.edu/2021/07/27/privaCy-law-COnsideratonS-
of-ai-and-big-data-in-the-u-s-abroad/ (July 27, 2021).
80 The WIPO Conversation on Intellectual Property and Frontier Technologies, https://www.wipo.int/about-ip/en/
VOL 102, NO. 2 Wills 201

CONTRACT AND PRIVACY LEGAL PROTECTIONS

Despite intellectual property law struggles with protecting AI, everyone agrees
that AI is a critical component of innovation. So companies must continue to
invest in AI. While intellectual property laws are being expanded or modified for
this purpose, companies should continue utilizing contract law protection for AI.
Contract law provides a flexible pathway for investors to define and attempt to
protect information. One article even provides sample contract sections, like a
statement of rights and the extent those rights can be shared with other parties, and
risk and liability.8
'

AI heavily impacts domestic and global privacy laws because company regulations,
influenced by the country's laws it sits in and the origin of any data it uses, regarding
the datasets and biometric information feeding the AI algorithms are at play. In
fact, the European Court of Human Rights is concerned about AI's overlap with the
right to freedom of expression and information by users of IP-protected content.82
In the U.S., the Federal Trade Commission is signaling for increased regulation
and enforcement of facial recognition technology and AI, although Commissioner
Chopra emphasized the regulation of data rights should remain at the state level. 83
Recently, AI and U.S. privacy laws collided when Texas Attorney General Ken
Paxton sued Meta (formerly known as The Facebook company) over Facebook's
facial recognition, claiming that the photo tagging system violates Texas's Capture
or Use of Biometric Identifier Act.84 Seeking tens of thousands of dollars in penalties,
Paxton argues that Meta captured biometric identifiers of Texans without their
consent and for a commercial purpose. This lawsuit comes after Facebook settled, in
early 2021, in a $650 million class action lawsuit over the same system's violations
of the Illinois Biometric Information Privacy Act. 85 In the end, there are several
reasons across various areas and sectors why companies should stay informed on
increasing regulation of AI.

frontier technologies/frontier_conversation.html (last accessed on Sept. 18, 2021). The Fourth Industrial Revolution
was coined by Klaus Schwab in 2016 and is used to describe advanced and emerging digital production technologies
that are changing manufacturing, industrial development, and global value chains. See Alejandro Lavopa and Michele
Delera, What is the Fourth Industrial Revolution?, IAP, https://iap.unido.org/articles/what-fourth-industrial-revolution
(Jan. 2021).
81 Lori Bennett et al., Cos. Should Assess IP, ContractualProtections For Their AI, LAw360 (June 16, 2020), https://
www.mayerbrown.com/-/media/files/perspectives-events/publications/2020/06/cos-should-assess-ip-contractual-
protections-for-their-ai.pdf.
82 Christopher Geiger and Elena Izyumenko, Intellectual Property before the European Court of Human Rights,
Center for International Intellectual Property Studies Research Paper No. 2018-01, https://papers.ssrn.com/sol3/papers.
cfm?abstract_id=3116752 (Feb. 5, 2018).
8 Andrea Weiss Jeffries et al,, Protecting Artificial Intelligence IPL Patents, Trade Secrets, or Copyrights?, JONES
DAY COMMENTARIES (January 2018), https://www.jonesday.com/en/insights/2018/01/protecting-artificial-intelligence-ip-
patents-trad.
84Adi Robertson, Texas is suing Meta over Facebook facial recognition, THE VERGE (Feb. 14, 2022), https://www.
theverge.com/2022/2/14/22933279/texas-attorney-general-facebook-meta-facial-recognition-photo-tagging.
85 Kim Lyons, Judge approves $650 million Facebook privacy settlement over facial recognition feature, THE VERGE
(Feb. 27, 2021), https://www.theverge.com/2021/2/27/22304618/judge-approves-facebook-privacy-settlement-illinois-
facial-recognition.
202 Al Around the World JPTOS

CONCLUSION

All consumers and innovators are focused on AI. And companies are focused on
the intersection of current IP regimes and whether they can accommodate protection
of their AI. While it is encouraging to see various agencies within the U.S., WIPO
member states, and countries across the globe engaging in mutual discussions
as they aim to craft an idealized cohesive regulatory framework, it is important
to understand that AI has been developing-and will continue to develop-at a
rate much faster than the speed of legislation or case law. For now, you need to
understand the available avenues for protecting AI under intellectual property law,
contract, and privacy law. As developments across the political sphere and economy
progress or resume, it will be on this author's bated breath to track the intersection
of AI, the digital age, and heightened awareness about biometrics and data privacy,
as it meets-and changes-the law.