President Issues Landmark Executive Order on Artificial Intelligence and Directives for the U.S. Patent and Trademark Office

On October 30, 2023, President Joe Biden issued a landmark executive order (the Order) directed to promoting use and managing risks of artificial intelligence (AI).

• The order recognizes the vast potential of AI and directs sweeping actions to protect against the risks of AI including: Requiring developers of AI systems to share safety test results and other critical information with the U.S. government; Development of standards, tools, and tests to help ensure that AI systems are safe, secure, and trustworthy;
  
• Protecting against the risks of using AI to engineer dangerous biological materials;
• Protecting Americans from AI-enabled fraud and deception; and
• Urging policies to advance equity and civil rights.

The Order also seeks to coordinate a federal approach toward safe and responsible use of AI. Directives include support of AI research across the United States and generation of a National AI Research Resource tool to provide AI researchers and students access to key AI resources and data. Directives are also provided for expanding grants for AI research in vital areas like healthcare and climate change, and providing small developers and entrepreneurs access to technical assistance and resources and commercialization of AI breakthroughs.

AI technologies have wide-ranging applications and potential. The term “AI” is used liberally today to generally describe highly advanced machine operations for a wide range of applications, including language translation, voice assistance, and content creation. Generative AI, and in particular ChatGPT¹, has received particular attention for its ability to create content in a fraction of the time a human would take to prepare content. Much like the early days of computer networks used to share data and communicate (we now generally refer to these networks as the internet), AI technologies will be adopted and used in many ways that will likely affect all Americans and alter operation s of businesses large and small. Some businesses already use assistive technology for call center operations and the use of AI technology will surely grow.

The Order is a major step by the Federal government to provide guidance for use of groundbreaking AI technologies as well as direct administrative agency policy. The order encourages action for better protection of Americans privacy. The United States has various federal and state laws that cover different aspects of data privacy, including health data, financial information, or data collected from children. These regulations may be updated in view of AI technologies and their application.

The Order also acknowledges that AI technology raises important new intellectual property (IP) issues and instructs the Director of the U.S. Patent and Trademark Office (USPTO) to publish guidance to patent examiners and applicants addressing inventorship and the use of AI. The Order also directs the Patent and Trademark Office and Copyright Office to provide recommendations to the President on potential executive actions related to copyright, including on the scope of protection for works produced using AI.

The USPTO has been active in recognizing the importance of AI and related technologies by producing webinar content, conference presentations, blogs, and reports. Applicants will benefit from additional USPTO guidance and policies, especially USPTO directives for Examiner guidance and handling of AI issues. AI technology has many applications and policy for administrative actions will likely require a nuanced approach. Guidance on USPTO statutory interpretation is also welcome as some AI technologies may not fall neatly within the bounds of patentable subject matter under 35 U.S.C. §101.

In view of the Order, there will likely be action from one or more agencies on the horizon with respect to privacy and handling AI in general. Businesses of all sizes, and even individuals, will likely feel some impact from these actions. With respect to Intellectual Property, additional guidance and handling of AI is welcomed as the number of applications directed to, or even related to, AI is expected to increase.
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¹ChatGPT is a large language model-based chatbot developed by OpenAI .