Intellectual Property

You are likely familiar with the children’s game, Connect 4, in which players drop red and black checker pieces into an upright rack trying to get four of their pieces in a row to win. Some of you may have even seen enlarged outdoor versions of the Connect 4 game at various venues. On August 24, 2022, the Ninth Circuit issued its opinion in P and P Imports, LLC v. Johnson Enterprises, LLC, in which the parties were battling a trade dress infringement claim involving these large outdoor Connect 4-like games.

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In Mobile Equity Corp. v. Walmart Inc., 2-21-cv-00126 (EDTX Sep. 8, 2022) (Roy S. Payne), the Court found that the asserted claims were not directed towards an abstract idea and did not encompass unpatentable subject matter and therefore were not invalid under 35 U.S.C § 101.

Pursuant to 35 U.S.C § 101, “whoever invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent therefor, subject to the conditions and requirements of this title.” A claim falls outside of 35 U.S.C § 101 where (1) it is directed to a patent-ineligible concept, i.e., a law of nature, natural phenomenon, or abstract idea, and (2), if so, the particular elements of the claim, considered both individually and as an ordered combination, do not add enough to transform the nature of the claim into a patent-eligible application. 

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In the last few years, the U.S. Copyright Office refused to allow a copyright registration for a work of art created by a machine, and a federal district court held that an artificial intelligence system could not be an inventor on a patent. However, before we decide whether an AI machine can have property rights, we will need to resolve a far more difficult question. Should AI machines have basic rights? This question requires consideration of ethical concepts, scientific knowledge, and legal issues. We cannot answer this question now because we do not have enough information.

One issue is who (or what) is entitled to have “human rights.” Most people believe that all humans have the rights to life, liberty, expression, freedom from slavery, freedom from torture, and the rights to an education and to work. Under the law, humans are granted the highest degree of rights, compared to non-human animals. However, the rights that a particular human actually receives depend on what country the human lives in, and the race, sex, sexual preference, age, religion, nationality, and income of that human. All of these factors may limit or drastically reduce the rights a human receives. Should AI machines have all of these rights before all humans have these rights? And what about non-human animals? Should AI machines have rights when animals, who are living creatures, have little or no rights? Corporations and other legal entities have some rights; should AI machines be given more rights than corporations but fewer rights than animals?

What is the test for whether a thing (human, animal, or AI machine) should have rights? Is the test whether the thing is alive or partially alive? The line is being blurred with the development of neural networks and DNA chips. Or is the test whether the thing is a sentient being (i.e., is conscious, aware, or able to perceive and feel)? It is generally believed that many animals are sentient, including vertebrates and some mollusks, such as octopus. Despite this, however, animals have been given few, if any, rights. In fact, almost all animals are eaten by humans somewhere in the world. 

As for AI, neuroscientists are concerned that humans may not be able to tell when an AI machine is sentient or may be tricked into thinking it is. They have suggested that sentience is separate from intelligence, and that an AI machine may have very high-end intelligence and be capable of performing complicated operations, but not have sentience. As of today, most experts believe that there is no AI machine that has achieved sentience, but some believe it may only be 10-20 years away. Because of this, neuroscientists are working on developing tests to be used to determine whether an AI machine has sentience.

Some experts think that the test for whether an AI machine should have rights should not be whether the thing has sentience, but something else, such as whether the AI can act independently of humans. Others think that rights go together with responsibilities, and that if AI machines cannot be responsible for their “bad” acts, they should not be entitled to have rights. Does this make sense? Children cannot be held responsible for their actions if they are too young to know better, but they still have rights. Should an AI machine’s rights be contingent on its “behavior”? Are AI machines the property of the humans who create them?

Many computer scientists think that we need to understand the decision-making process of AI machines before we can decide if they should have rights. These experts believe that the algorithms used in AI are not sufficiently well understood, and more research needs to be done to fully understand how AI machines will make decisions. The ultimate question is whether AI machines could achieve sufficient power to be able to independently decide to turn on their human creators. While this may sound like the stuff of movies, it has been analyzed as a legitimate concern.

If it is determined that an AI machine is entitled to rights under whatever test is used, what rights should it have? Some experts suggest that AI machines should have the right to be free from destruction by humans and the right to be protected by the legal system.

The opinions on the subject of AI vary greatly. Stephen Hawking used an incredibly complex communication system, a type of AI, to allow him to write and speak. He believed that we need to better understand AI, especially its risks and benefits. Hawking was concerned that AI would “evolve” and develop more advanced systems much faster than humans could understand, and that AI could become more powerful than humans. 

Bill Gates believes that AI may be the strongest tool humans will have to address some of the world’s most serious problems, particularly the most difficult health problems. He has pointed out that the computational power of AI applications is doubling every 3-4 months, far in excess of the two-year doubling rate of chip density. Gates believes that AI will be able to detect patterns in genetic information of millions of individual humans and other species far more quickly than humans could do so, yielding a better understanding of the causes and treatment of diseases.

Although there are many opinions on the advantages and disadvantages of using AI and on whether AI machines should have rights, it is clear that we will have to address these issues in the near future. 

Hailey Bieber recently founded her own line of skincare products under the trade name Rhode, which is her middle name. Unfortunately, her latest venture was not warmly received by everyone. The founders of the fashion line RHODE almost immediately filed a trademark infringement lawsuit against Mrs. Bieber in the United States District Court for the Southern District of New York. In short, the fashion brand contends that Mrs. Bieber’s use of Rhode in connection with skin care products is likely to create consumer confusion, despite the fact that their federal trademark registration does not include skin care products. To that end, the fashion brand claims it has common-law trademark rights concerning such goods.

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In Lang Van, Inc. v. VNG Corporation (decided July 21, 2022), the Ninth Circuit addressed the issue of how to evaluate whether a U.S. District Court can exercise personal jurisdiction over a foreign defendant with regard to a copyright infringement suit. Lang Van is a California corporation that produces and distributes Vietnamese music and entertainment, owning the copyrights to thousands of songs and programs. VNG is Vietnamese corporation that created the Zing MP3 website that makes copyrighted music available for download. In 2011-2012, VNG released Zing MP3 apps with Apple and Google.

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Previously, the Court of Appeals for the Federal Circuit (“Federal Circuit”) has found that a non-human may infringe patents. Arguably, an AI system, which is a non-human, can also create or invent. But can an AI system be a named inventor on a patent? The Federal Circuit recently addressed this issue in Thaler v. Vidal.

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It’s been referred to as one of the top copyright cases to watch this year. This case, Alexis Hunley, et al v. Instagram, LLC, could mean the end to the server test, a once widely-followed copyright doctrine established by the 9th Circuit in Perfect 10, Inc. v. Amazon.com Inc., now rejected by a number of courts.

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On Monday this week, the Director of the U.S. Patent and Trademark Office announced that the PTO would be revisiting the test for patent subject matter eligibility. The announcement was made on the blog homepage of PTO Director Kathi Vidal.

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In Jacobs et al v. The Journal Publishing Company et al, 1-21-cv-00690, District Judge Martha Vazquez of the District Court of New Mexico recently held Plaintiffs’ twenty-two-month delay in filing suit rebutted any presumption of irreparable harm for alleged copyright violations, and accordingly denied Plaintiffs’ motion for a preliminary injunction.

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