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As artificial intelligence continues to develop and becomes a regular part of product design and development, businesses face an increasingly important question: Can intellectual property developed with AI assistance still be protected?

The short answer is yes, potentially.

Using AI does not automatically prevent patent protection. At this time, however, the U.S. only recognizes a natural person (or persons) as the named inventor(s). The central issue for AI-assisted inventions is whether one or more people conceived the subject matter claimed in the patent application.

Merely asking an AI system to solve a problem, or selecting one of its outputs, does not necessarily make someone an inventor. Prompting, testing, and revising AI-generated results may be relevant, but the ultimate question is whether the person formed a definite and permanent idea of the claimed invention that is sufficiently developed that a person of ordinary skill could reduce it to practice without extensive research or experimentation.

For example, a person may qualify as an inventor by conceiving the claimed solution and using AI to refine or implement it, or by conceiving a feature or improvement that is included in the patent claims. Someone who simply requests and accepts an AI-generated solution may have difficulty establishing human conception.

Inventorship is also different from patentability and ownership. The invention must still independently satisfy all applicable patentability requirements, including patent eligibility, utility, novelty, and non-obviousness. Employment agreements and invention assignments may determine whether the resulting patent rights belong to the inventor or the company.

Copyright law raises similar but distinct issues. Copyright protects original works of authorship that are fixed in a tangible medium. As with patents, the U.S. currently only protects elements of a work that reflect original human authorship. A work containing AI-generated material may receive protection for original human-authored text, code, images, modifications, or selection and arrangement. The protection, however, does not extend to unprotected AI-generated elements merely because they are incorporated into the work. Requesting or selecting AI-generated material, without sufficient human creative control, may not be enough.

Companies should maintain records that distinguish human contributions from AI-generated output. These records may include drafts, design notes, prompts, test results, source-code revisions, and communications identifying who conceived features later included in patent claims or created the work’s original expressive elements.

Businesses should also exercise caution before entering confidential information into an AI platform. Patent consequences depend on whether the information becomes publicly available, while trade secret protection could be compromised if the owner fails to take reasonable measures to preserve secrecy. It is important for businesses to understand the AI platform’s terms, confidentiality obligations, data-retention and model-training practices, access controls, security protections, as well as the business’s own policies and practices. 

AI can be a valuable tool, but caution must be exercised to ensure your rights are not lost. Patent inventorship depends on human conception. Copyright protection depends on original human-authored expression. Trade-secret protection depends, in part, on reasonable measures to preserve secrecy.

If your company uses AI to develop inventions, software, marketing materials, or other creative content, contact our office to discuss how patents, copyrights, contracts, and trade-secret protections may help protect those assets.

This information is made available by Stibbs & Co., P.C. for informational purposes only, does not constitute legal advice, and is not a substitute for legal advice from qualified counsel. The laws of other states and nations may be entirely different from what is described.  Your use of this information does not create an attorney-client relationship between you and Stibbs & Co., P.C.  This material may be considered attorney advertising in some jurisdictions. The facts and results of each case will vary, and no particular result can be guaranteed.