This chapter delves into the complex legal questions surrounding AI-generated content and intellectual property rights. Because copyright and patent law primarily focus on human authorship and inventorship, the emergence of AI raises questions about the extent to which AI systems can be considered creators. The chapter explores the possibility of AI-generated works receiving copyright or patent protection and the challenges in determining authorship and originality in the context of AI. Additionally, the chapter examines the potential impact of AI on trademark and trade secret law. It discusses whether AI systems can own or hold intellectual property rights, as well as the implications for businesses and individuals who rely on AI-generated content.

This chapter draws all the threads together, highlighting the profound impact that artificial intelligence is likely to have on the landscape of intellectual property. It summarizes the core arguments of the book and sets out the author’s proposed strategies for adapting intellectual property law to the age of AI. By embracing these approaches, the chapter argues, one can ensure that intellectual property law continues to protect human creativity and innovation in the digital age.

Since the advent of ChatGPT in November 2022, public discourse has intensified regarding the intersection of artificial intelligence and intellectual property rights, particularly copyright. Large language models (LLMs) like ChatGPT and Gemini have sparked debates about what deserves copyright protection and what constitutes copyright infringement. Key questions arise: Are LLM-generated outputs original enough to merit copyright protection? And do they infringe upon existing copyrighted works used in their training data? This chapter delves into these issues, examining the legal and ethical implications of training LLMs on copyrighted material. The chapter also explores the concept of fair use, the potential for transformative use of copyrighted works, and the evolving landscape of copyright law in the age of AI.

This chapter explores how advancements in artificial intelligence are impacting the landscape of intellectual property law. The chapter analyzes the ways in which AI can challenge traditional notions of authorship, originality, and invention. By automating creative processes and generating new ideas, AI can reduce the pool of human-created works eligible for intellectual property protection. The chapter delves into the legal and ethical implications of these developments and discusses potential strategies for adapting intellectual property law to the AI age.

This introductory chapter explores the foundation of intellectual property (IP) in the United States, specifically focusing on the history and purpose of copyright, patent, trademark, and trade secret. It highlights how these pillars have maintained their utilitarian character despite major technological revolutions and emphasizes the disruptive potential of artificial intelligence (AI). As AI technologies increasingly influence creative processes, they raise significant questions about the nature of human contribution and the value of IP. This chapter introduces some of the legal implications of generative AI, including concerns over copyright infringement and the potential need for new IP protections for AI-generated works. It outlines how the rise of AI challenges the traditional metrics of progress and the standards by which human contributions are evaluated. The author suggests that rather than resisting these changes, society should adapt its understanding of IP in a way that reflects the evolving technological landscape. Ultimately, the author argues for a nuanced approach to IP law that recognizes the shifting boundaries of what constitutes valuable innovation, advocating for humility in navigating the complexities of this ongoing transformation. The discussion sets the stage for the rest of the book.

In 2021, the Brazilian Supreme Court issued a landmark decision which declared that a portion of Section 40 of the Brazilian Patent and Trademark law violated the constitutionally enshrined right to health. The challenged provision automatically extended the terms of certain patents for up to ten years, a much longer period than permitted under any other patent regime in the world. It was adopted following lobbying from foreign pharmaceutical companies over the objections of local elites. The impugned provision qualified as an example of ultra-orthodoxy, defined here as the adoption of radically neo-liberal legal institutions in developing countries as a result of the lobbying efforts of industries with substantial economic power. The ruling by the Brazilian Supreme Court merely brought Brazilian law into line with the TRIPS agreement, the benchmark for legal orthodoxy. At the same time, the ruling was heterodox in several respects, including the interpretation of the right to health as a collective human right, the value given to independent academic opinions, and the attention paid to comparative law, particularly involving other countries from the Global South. It remains to be seen whether backlash against the decision will mute its potentially beneficial distributive effects.

Since 1985, when China’s first Patent Law came into effect, China has established a legal protection system for utility models. At present, after four revisions of the Patent Law, China’s utility model patent legal system has also been improved. However, among the authorized utility model patents, those that fully meet the necessary conditions of novelty and inventive step might be in the minority. Of course, this phenomenon is not unique in China. The purpose of this chapter is to illuminate the ongoing optimization of the Chinese utility model patent system in the context of the development of China’s overall patent system. Accordingly, Part Ⅰ traces the emergence of China’s Patent System, including the Chinese utility model patent-based subsystem. Part Ⅱ centers on the basic contours of the Chinese utility model patent system. Part Ⅲ then summarizes existing deficiencies of the Chinese utility model patent system and future development trends. It concludes with a discussion of potential implications of proposed revisions to the Chinese utility model patent system.

While national rules regarding the scope, availability and issuance of utility models vary from country to country, most utility model regimes offer protection for tangible products, with many, but not all, jurisdictions excluding processes, biological materials and computer software from the scope of protection. The duration of utility model protection ranges from five to fifteen years, with most countries offering ten years of protection. In most countries, utility model applications are not formally examined and must simply disclose the product in question. Given the lack of examination, obtaining utility models is generally viewed as faster and cheaper than obtaining patents. This combination of speed and cost, in theory, makes utility models potentially attractive to small and medium enterprises (SMEs) that cannot afford to obtain full patent protection. Similar considerations have also been raised as advantageous to innovators in low-income countries.

This chapter discusses the interface of artificial intelligence (AI) and intellectual property (IP) law. It focuses on the protection of AI technology, the contentious qualification of AI systems as authors and/or inventors, and the question of ownership of AI-assisted and AI-generated output. The chapter also treats a number of miscellaneous topics, including the question of liability for IP infringement that takes place by or through the intervention of an AI system. More generally, it notes the ambivalent relationship between AI and the IP community, which appears to drift between apparent enthusiasm for the use of AI in IP practice and a clear hesitancy toward catering for additional incentive creation in the AI sphere by amending existing IP laws.

The global landscape for existing utility model rights is a helpful starting point to the discussion on utility model innovation policy at the country-level as well as firm strategy. WIPO data indicates that approximately 3.0 million utility model applications were filed globally in 2022, a growth rate of 2.9% from the previous year and close to the global total of 3.5 million applications for standard patents. Only about one-half of the world’s countries provide for utility model systems, yet companies from around the world acquire these rights. Utility models are important players in the IP environment, and the unique qualities of the system and differential representation require specific analysis. In this chapter, we review existing empirical data and present additional data regarding UM filings and litigation worldwide. Our purpose is to provide background and context for the more detailed discussion in the remaining chapters in this book.

Women do not receive their fair share when it comes to patenting and are far less likely to own patents. This disparity is due in part to the inherent biases in science, technology, and the patent system and in part to the high costs of the patent application process. This chapter therefore proposes an unconventional new regime of unregistered patent rights to relieve women and other disadvantaged inventors of such costs and biases and thereby increase their access to patent protections. To explain the proposal, this chapter details the challenges facing women and other disadvantaged inventors in applying for patents as well as the fact that other intellectual property regimes, such as copyright and trademark, allow such unregistered rights. The chapter also addresses a number of objections that the proposal would inevitably raise. In particular, it shows that, because the proposed unregistered patent system would grant rights for only three years and protect only against direct and knowing copying, these rights would be unlikely to deter incremental or complementary innovation. Such rights would also be fully subject to invalidation under a preponderance of the evidence standard.

Theoretically, all inventions are equal under the law: they receive the same scope of protection for the same period, backed by the same remedies. In reality, such equality has been strongly compromised. Patents are concentrated in the hands of big companies and privileged individuals. Women and minorities – as well as firms they own – are less likely to file for patents and have their patents granted. Small companies are also less likely to file and receive patents than strong incumbents. This chapter argues that some changes in the patent system can trigger better accessibility, affordability, and equality. It builds on the author’s earlier proposal to replace the patent record with a decentralized database that would include more information about inventions from more sources and additional functions. Under the proposal, inventors would submit patent applications to a shared patent record instead of a central patent office. During the examination process and throughout the duration of the patent, industry and state actors would be able to update the record. For example, third parties could submit prior art, scientists could weigh in on obviousness, patentees could offer licenses, and courts could list outstanding cases that pertain to the patent.

This chapter proposes resurrecting the best mode requirement of patentability and potentially extending disclosure obligations for a finite period of time after patent filing. It further argues that government agencies can leverage public research and procurement funds to promote greater technical disclosure by private innovators. Such measures can increase the disclosure of latent knowledge and codified trade secrets. However, transferring purely tacit knowledge, which is not amenable to codification, often requires direct interaction between technology generators and adopters. This chapter cautions against requiring such intensive tacit knowledge transfer as part of the patent quid pro quo. However, it suggests leveraging public investment in private innovation and building knowledge-sharing infrastructure to facilitate such transfer.

Chapter 1 chronicles how the distractibility of a king, the agency of objects, the desires that cloud judgment, and the memories that haunt the present shape events perhaps even more than ideology. Prior to the restoration of the monarchy in 1660, the Duke of Newcastle proposed returning to a Caroline-style theatrical marketplace, but he was outmaneuvered by courtier-playwrights long accustomed to deploying networks of access. Contingency also determined outcomes. The particular circumstances of Charles II’s upbringing certainly benefited William Davenant and Thomas Killigrew, the two successful patentees. Unlike his royal predecessors, the new monarch regarded the commercial theatre as a gift to be bestowed upon persistent clients who would enjoy monopolistic control going forward. No one foresaw, of course, the economic repercussions of that gift, namely, how the transformation of the theatre from a purely commercial to a hybrid enterprise would require substantial support beyond the box office. Additionally, the duopoly so sought by Killigrew and Davenant exerted its own unexpected agencies. As the following chapters explore, its resulting economic and cultural logic galvanized a host of decisions about repertories and performance practices that would prove both innovative and ruinous.

This chapter begins by outlining the dematerialisation of subject matter that has occurred over the last two decades or so and the problems that this has created for the law. I then explain the aims of the book, namely to look at three situations where patent law has already dealt with a dematerialised subject matter and the role that science and technology played in helping the law to accommodate that subject matter. I end by explaining the particular way that I approach subject matter in the book.

How do you read a patent and what subject matter is patentable? What is the purpose of a patent? Who is an inventor on the patent if work is done by many people on the project? What is the process of obtaining a patent in my country and globally? Read this chapter to see how you could lose commercialization rights to your own invention. When exactly does an invention or idea become patentable? Once you own a patent, how can you make money from it? What is the process of licensing and the key terms that should be negotiated in such a license agreement? What is the use of a copyright or a trade secret in biotech? What exactly constitutes patent infringement ? These questions and many others are addressed in this chapter on intellectual property.

Design patents protect the way a product looks whereas utility patents protect the way a product is used. The law suggests a great disparity between the artistic creation relevant to design patents and the scientific creation relevant to utility patents. The design process is believed to be so personal and subjective that judges refuse to consider any part of a design more important than another. This stands in sharp contrast to the law’s assumptions about scientific invention, which permits objective and focused evaluation of the invention and its prior art. This art/science double standard does not jibe with evidence that the same neural phenomena are at work in all kinds of creative tasks. For scientists as well as designers, both sides of the brain must be engaged in the same process: coming up with an idea, then building on that idea so that it is useful. To earn design patent protection, a claimed design must be “nonobvious” to “the ordinary designer.” To the extent judges refuse to rigorously compare claimed designs against earlier works to determine nonobviousness, they are straying from the way designers actually generate innovative design.

The Introduction sets out the central premise of the book: a sea change in our understanding of the human brain has deep, unexamined implications for intellectual property law. The Introduction begins to build the case for this argument by providing a brief description of the techniques used to detect the biological mechanisms attendant to different thought processes. It connects these techniques to the relevant actors whose perspectives structure the book’s three main parts: artists, audiences, and judges. Neuroscientific lessons for intellectual property law should be approached with a mixture of hope and caution. The hope comes from replacing some of the mistaken hunches about artists and audiences that have shaped intellectual property law for decades. The caution comes from a need to avoid junk science and neuroscientific theories that could do damage to the underlying aims of copyright, patent, and trademark law.