[Federal Register Volume 84, Number 210 (Wednesday, October 30, 2019)]
[Pages 58141-58142]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-23638]



Patent and Trademark Office

[Docket No. PTO-C-2019-0038]

Request for Comments on Intellectual Property Protection for 
Artificial Intelligence Innovation

AGENCY: United States Patent and Trademark Office, Department of 

ACTION: Request for comments.


SUMMARY: The United States Patent and Trademark Office (``USPTO'') is 
gathering information about the impact of artificial intelligence 
(``AI'') technologies on intellectual property law and policy. To 
assist in gathering this information, on August 27, 2019, the USPTO 
published questions related to the impact of artificial intelligence 
inventions on patent law and policy and asked the public for written 
comments. Those questions cover a variety of topics, including whether 
revisions to intellectual property protection are needed. The present 
notice extends this inquiry to copyright, trademark, and other 
intellectual property rights impacted by AI.

DATES: Written comments must be received on or before December 16, 

ADDRESSES: Written comments should be sent by email to 
[email protected]. Comments may also be submitted by postal mail 
addressed to the Director of the U.S. Patent and Trademark Office, P.O. 
Box 1450, Alexandria, VA 22313-1450. Although comments may be submitted 
by postal mail, the USPTO prefers to receive comments via email.
    Because written comments and testimony will be made available for 
public inspection, information that a respondent does not desire to be 
made public, such as a phone number, should not be included in the 
testimony or written comments.

FOR FURTHER INFORMATION CONTACT: Coke Stewart, Office of the Under 
Secretary and Director of the USPTO, (571) 272-8600.

SUPPLEMENTARY INFORMATION: Artificial Intelligence (AI) technologies 
are increasingly becoming important across a diverse spectrum of 
technologies and businesses. AI poses unique challenges in the sphere 
of intellectual property law. At a January 31, 2019 conference on 
``Artificial Intelligence: Intellectual Property Policy 
Considerations,'' USPTO explored a number of those challenges.\1\ On 
August 27, 2019, the USPTO published a request for comment regarding 
AI's impacts on patent law and policy. As a continuation of this work, 
the USPTO is also considering the impact of AI on other intellectual 
property rights.

    \1\ A videotape of the entire conference, along with the agenda 
and an overview of the conference, are available at https://www.uspto.gov/about-us/events/artificial-intelligence-intellectual-property-policy-considerations.

    Issues for Comment: The USPTO seeks comments on the copyright, 
trademark, and other intellectual property rights issues that may be 
impacted by AI. The questions enumerated below are a preliminary guide 
to aid the USPTO in collecting relevant information to evaluate whether 
further guidance is needed and to assist in the development of any such 
guidance with respect to intellectual property policy and its 
relationship with AI. The questions should not be taken as an 
indication that the USPTO has taken a position, or is predisposed to 
any particular views. The USPTO welcomes comments from the public on 
any issues that they believe are relevant to this topic, and is 
particularly interested in answers to the following questions:
    1. Should a work produced by an AI algorithm or process, without 
the involvement of a natural person contributing expression to the 
resulting work, qualify as a work of authorship protectable under U.S. 
copyright law? Why or why not?
    2. Assuming involvement by a natural person is or should be 
required, what kind of involvement would or should be sufficient so 
that the work qualifies for copyright protection? For example, should 
it be sufficient if a person (i) designed the AI algorithm or process 
that created the work; (ii) contributed to the design of the algorithm 
or process; (iii) chose data used by the algorithm for training or 
otherwise; (iv) caused the AI algorithm or process to be used to yield 
the work; or (v) engaged in some specific combination of the foregoing

[[Page 58142]]

activities? Are there other contributions a person could make in a 
potentially copyrightable AI-generated work in order to be considered 
an ``author''?
    3. To the extent an AI algorithm or process learns its function(s) 
by ingesting large volumes of copyrighted material, does the existing 
statutory language (e.g., the fair use doctrine) and related case law 
adequately address the legality of making such use? Should authors be 
recognized for this type of use of their works? If so, how?
    4. Are current laws for assigning liability for copyright 
infringement adequate to address a situation in which an AI process 
creates a work that infringes a copyrighted work?
    5. Should an entity or entities other than a natural person, or 
company to which a natural person assigns a copyrighted work, be able 
to own the copyright on the AI work? For example: Should a company who 
trains the artificial intelligence process that creates the work be 
able to be an owner?
    6. Are there other copyright issues that need to be addressed to 
promote the goals of copyright law in connection with the use of AI?
    7. Would the use of AI in trademark searching impact the 
registrablity of trademarks? If so, how?
    8. How, if at all, does AI impact trademark law? Is the existing 
statutory language in the Lanham Act adequate to address the use of AI 
in the marketplace?
    9. How, if at all, does AI impact the need to protect databases and 
data sets? Are existing laws adequate to protect such data?
    10. How, if at all, does AI impact trade secret law? Is the Defend 
Trade Secrets Act (DTSA), 18 U.S.C. 1836 et seq., adequate to address 
the use of AI in the marketplace?
    11. Do any laws, policies, or practices need to change in order to 
ensure an appropriate balance between maintaining trade secrets on the 
one hand and obtaining patents, copyrights, or other forms of 
intellectual property protection related to AI on the other?
    12. Are there any other AI-related issues pertinent to intellectual 
property rights (other than those related to patent rights) that the 
USPTO should examine?
    13. Are there any relevant policies or practices from intellectual 
property agencies or legal systems in other countries that may help 
inform USPTO's policies and practices regarding intellectual property 
rights (other than those related to patent rights)?

    Dated: October 23, 2019.
Andrei Iancu,
Under Secretary of Commerce for Intellectual Property and Director of 
the United States Patent and Trademark Office.
[FR Doc. 2019-23638 Filed 10-29-19; 8:45 am]