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PublishedApril 15, 2024

CCIA Senior Counsel Joshua Landau Testifies To Congress

In case you missed it, I testified to the House Judiciary Committee’s IP Subcommittee last week about whether the output of AIs should receive patent and/or copyright protection. The hearing is available to watch here, and my written testimony is available here. Below is my prepared oral testimony.

Chairman Issa, Ranking Member Johnson, distinguished members of the Subcommittee, thank you for inviting me to testify today.  CCIA has been at the forefront of technology policy issues for more than 50 years, and our members are at the forefront of artificial intelligence technology today.  They make the chips that AI runs on, develop leading-edge AI models, and use AI to solve problems for their customers.  

It is critical that we protect American innovation while preventing the abuse of intellectual property protections for AI output.  But if we look to existing law, we can find the balance we need.

In 1966, the Register of Copyrights was facing a difficult issue.  Computer technology was becoming more widespread and sophisticated.  People were beginning to apply for copyright protection for creative works made by computers.  As the Register wrote: “it is certain that both the number of works proximately produced or ‘written’ by computers and the problems of the Copyright Office in this area will increase.”

Fortunately, the Register also had an answer—and it was a good one.  The Register identified the determinative question: “whether the ‘work’ is basically one of human authorship, with the computer merely being an assisting instrument, or whether the traditional elements of authorship in the work [] were actually conceived and executed not by man but by a machine.”

The Register’s approach 60 years ago remains the right approach today.  The same inquiry applies to patentable inventions—was the invention one conceived of by human ingenuity with the AI operating as an assistive tool, or was the invention generated exclusively by the AI system?  When a machine is responsible for the traditional elements of creation—the original expression of an artistic work or the generation of an invention—then intellectual property rights are inappropriate.  When the machine simply supports human authorship or invention, then copyright or patent protection should remain available.  

With that guiding principle in mind, many questions regarding AI output and IP protection become easier to answer.  Completely human creations remain protectable; completely AI creations do not.  There will be difficult questions in the center of that continuum, where humans and AI collaborate to create and invent, but the answers there lie in existing law—in the law of inventorship and authorship—and in the Register’s focus on whether a human was truly the creative or inventive entity.

Those difficult questions will require attention.  For example, if an inventor uses AI as a tool to develop a new invention, when does it cross the line from collaboration to the human taking the AI’s work as their own?  The existing law of inventorship should guide us.  Someone who provides background information or explains the state of the art isn’t an inventor, nor is someone who simply suggests a desired goal and does not contribute to the solution of the problem.  The courts are well-suited to developing these basic, long-standing principles to address future uses of AI.

Beyond the availability of IP protection for AI output, AI tools will impact other areas of the law.  For example, in patent law, the question of obviousness rests on whether a person of ordinary skill with the relevant prior art available could have created the invention.  This is, fundamentally, how many AI systems already operate.  The availability of AI as a tool to aid in invention thus raises the level of ordinary skill in the art.  If Albert Einstein and my six-year old son can both ask an AI tool for the answer to a problem and get the same answer as each other, it is hard to argue either of them has invented anything that they should be allowed to patent.

Outside of the legal system, there are potential policy problems if we make AI output eligible for IP protection.  Already, more than half of U.S. patents are issued to foreign inventors.  These inventors can and do assert their patents against American companies.  The PTO was even forced to change its trademark rules to deal with a flood of inaccurate and potentially fraudulent trademark applications from China.  If AI output is patentable, a foreign adversary might flood the Patent Office with AI-generated inventions.  This will either weigh heavily on the Office’s resources or result in even more cases of foreign entities weaponizing patents against the American economy.  In either case, granting patents for AI output presents significant concerns.

Finally, we should bear in mind that the Constitutional purpose of copyright and patent protection is not to provide economic rewards—it’s to “promote the progress of science and useful arts.”  The economic rewards are a means to that end.  But AI does not require the same economic incentives as people.

AI will undoubtedly become a part of the ordinary process of invention and creation.  But, as the Register of Copyrights recognized almost 60 years ago, and as the courts and agencies continue to recognize today, it is essential that we ensure AI remains an adjunct to human creativity, not a replacement for it.  This approach will protect American creativity and innovation, including in the field of AI.

I thank the Subcommittee for its time today and I look forward to your questions. 

Josh Landau

Patent Counsel, CCIA

Joshua Landau is the Patent Counsel at the Computer & Communications Industry Association (CCIA), where he represents and advises the association regarding patent issues.  Mr. Landau joined CCIA from WilmerHale in 2017, where he represented clients in patent litigation, counseling, and prosecution, including trials in both district courts and before the PTAB.

Prior to his time at WilmerHale, Mr. Landau was a Legal Fellow on Senator Al Franken’s Judiciary staff, focusing on privacy and technology issues.  Mr. Landau received his J.D. from Georgetown University Law Center and his B.S.E.E. from the University of Michigan.  Before law school, he spent several years as an automotive engineer, during which time he co-invented technology leading to U.S. Patent No. 6,934,140.

Follow @PatentJosh on Twitter.

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