The rapid rise of generative AI tools like ChatGPT has introduced new possibilities for creators and inventors. Yet, it’s also raised questions about intellectual property (IP). The legal framework for AI-generated works is still evolving, and no one truly knows where the lines will be drawn for patents or copyrights. Below, we explore how to use AI in a way that maintains clear ownership of your ideas and creative works.
1. The Unknown Future of AI-Created IP
- Patent Ambiguities
While humans must still be named as inventors on U.S. patent filings, the role of AI in generating core invention concepts may complicate matters. The law hasn’t definitively established how to treat AI-originated inventions. A particular complication will be hybrid inventions. If my prompt is “Please generate a patent application where X is converted into Y by using the process of A, B, and C in sequence, then dunking it all in warm milk”, and the AI writes it up, who is the inventor? Probably me, but only for the parts I provided in the prompt. And how will I go about proving what was in the prompt? What if I create a “burner” anonymous AI account, have it generate actual parts of the invention, and then use those in a prompt on my regular AI account? It would be fraud on the patent office, but how would that be discovered?
There was a time (before the America Invents Act) when inventors in the US kept detailed inventor’s notebooks in order to prove their invention date. Even if you never touch AI, you should probably start keeping such a notebook. Don’t forget to have a third party sign and date each page. This way, you have some proof that you developed the ideas over time. Yes, a well funded infringer might still try to invalidate your patent by claiming that AI generated the invention, but pages signed over a long period of time provides some level of evidence tending to show human invention. - Copyright Complications
Current U.S. Copyright Office guidelines suggest that fully AI-generated works aren’t entitled to copyright protection if there’s no human authorship. However, partial human involvement may muddy the waters, leaving the law open to interpretation. What if I write a book and run each page through an AI (or, if the context window is big enough, run the whole book through at once) and tell it “please rewrite this so it is more exciting”. Some new ideas might be introduced by the AI, but the basic structure would still be mine. Ugh, a nightmare.
2. How to Safely Use AI Tools
- Seek Research, Not Solutions
Instead of prompting AI to invent or write for you, use it to guide your own research. For example, ask for references or background materials on a subject rather than demanding a fully formed invention or an entire written piece. Instead of saying “figure out how I can turn X into Y”, ask “if I apply process A to X, what happens?” If you’re only getting data, it is no different than any other kind of research that gets incorporated into the background that makes an invention possible. - Preserve Your Human Input
If you maintain creative control—by generating the core ideas, text, or artistic expression yourself—you’re more likely to secure clear copyright or patent rights. It would also be helpful to keep records — maybe even a handwritten, bound, dated and witnessed journal — to show when and how you came up with concepts.
3. Practical Applications
- Patent Exploration
- What to Ask: “Show me major research studies in X field” or “How have other people tried solving for Y technical problem.”
- What to Avoid: “Generate a new invention in technology X.”
- Copyrighted Works
- What to Ask: “Provide an outline of topics to research for a short story” or “List character archetypes from literature.”
- What to Avoid: “Write my entire short story for me.”
- Academic Integrity
- What to Ask: “Recommend authoritative sources for a history paper on [topic].”
- What to Avoid: “Write my entire research paper.”
4. Staying on the Right Side of IP Law
- Document Your Contributions
Keep records of how you used AI—showing where your own creative decisions start and end can help if any disputes arise. - Monitor Legislative Changes
AI and IP law is a fast-moving area. Follow updates from the U.S. Patent and Trademark Office (USPTO), the Copyright Office, and relevant court rulings. Understand that AI law will intersect with IP law differently in each country until there is either some kind of international consensus (if that is even possible) or treaty. - Consult Professionals
If your project relies heavily on AI-generated material and has commercial potential, talking to a specialized IP attorney can protect you from future headaches. - Trade Secrets Should be Immune: https://chatgpt.com/
A trade secret is exactly what it sounds like — a secret that is used in your trade or business. It only has trade secret status because you’ve kept it secret, not because you came up with it yourself. While the patent systems globally are struggling with the impact of AI on patents, it may be sensible to prefer trade secret protection if choosing between patents and trade secrets. That said, see an IP lawyer. I’m sure any observations I give today will be stale by tomorrow, given the speed with which AI is moving.
5. Key Takeaways
- Full AI Authorship Is Unclear But Unlikely: Existing laws don’t definitively grant IP rights to purely AI-generated works. In fact, some laws seem to require human creation, such as the provision in the US Constitution giving Congress the power “To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.” It is hard to imagine that Congress intended for machines to be treated as authors or inventors (but then again, the Constitution ultimately means whatever the Supreme Court says it means, whether it makes sense or not).
- Focus on Guidance, Not Output: Use generative AI as a research assistant rather than a creator or inventor.
- Stay Engaged: Be prepared to adapt your approach as the legal landscape evolves—and always maintain a clear human element in your creative process.