The USPTO and Copyright Office's Latest AI IP Recommendations

I. Introduction

As artificial intelligence (AI) continues to advance, intellectual property (IP) law must evolve to address its growing impact. Recognizing this need, both the United States Patent and Trademark Office (USPTO) and the U.S. Copyright Office have issued their most recent recommendations to address AI-related challenges. On January 14, 2025, the USPTO released its Artificial Intelligence Strategy, providing a structured approach to integrating AI into patent and trademark examination while considering long-term policy implications for AI-assisted inventions. Just two weeks later, on January 29, 2025, the U.S. Copyright Office published Part 2 of its AI and Copyright report, clarifying the legal standing of AI-generated works under copyright law and reinforcing the necessity of human authorship for copyright eligibility.

These recommendations represent the most current and comprehensive policy positions taken by both agencies in response to the rapid proliferation of AI in innovation and creative industries. This article examines their core aspects, the practical implications for practitioners, and the potential legal challenges that may arise as AI continues to reshape intellectual property law.

II. USPTO’s Artificial Intelligence Recommendations

a. Framework and Key Recommendations

The USPTO’s AI Strategy focuses on refining existing IP policies to accommodate AI-driven innovation while maintaining legal clarity around patent and trademark protections. Rather than radically reshaping existing laws, the agency is taking an incremental approach, working within established legal frameworks and legal precedent.

A critical aspect of the USPTO’s recommendations is its stance on inventorship. While AI can be used to assist in the inventive process, current constitutional precedent dictates that only human beings can be named as inventors. This reaffirms the decision in Thaler v. Vidal, where the Federal Circuit ruled that AI systems cannot be inventors under U.S. law. However, the USPTO is recommending further research and discussion on how AI-generated inventions should be treated in the future, recognizing that as AI capabilities expand the law may need to as well.

Beyond inventorship, the USPTO is also focusing on improving its own operational efficiency through AI. It has proposed deploying AI-driven tools to enhance patent and trademark examination processes, particularly in prior art searches and evaluating the distinctiveness of trademarks.

b. Impact on Patent and Trademark Law Practitioners

For patent attorneys and applicants, the USPTO’s recommendations reinforce the need to clearly document human contributions in AI-assisted inventions. Practitioners should anticipate more stringent scrutiny on applications involving AI-generated innovations and be prepared to demonstrate how human ingenuity was essential to the invention. Additionally, the use of AI in patent searches and prior art evaluations is expected to become more prevalent, meaning attorneys must stay updated on how these tools may impact prosecution strategies.

Trademark attorneys should also be aware of AI’s growing role in assessing brand distinctiveness and likelihood of confusion analyses. As AI-generated branding and advertising materials become more common, practitioners will need to closely monitor how AI-assisted trademarks are being generated so as not to be confusingly similar to pre-existing registrations.

III. U.S. Copyright Office’s AI and Copyright Report (Part 2)

a. On Copyrightability of AI-Generated Works
The U.S. Copyright Office’s latest report directly addresses the question of whether AI-generated works qualify for copyright protection. The agency has reinforced its position that only works exhibiting human authorship are eligible for copyright, a standard that aligns with constitution al precedent. The Copyright Office distinguishes between purely AI-generated works and those that include meaningful human involvement, clarifying that copyright protection is only available for the latter.

The report highlights key scenarios for evaluating copyright eligibility. Works that are entirely generated by AI, without human modification or selection, will not be granted copyright protection. However, if a human author plays a substantial role in shaping, modifying, or arranging AI-generated content, those aspects of the work may qualify for copyright. This means that merely entering a text prompt into an AI tool is insufficient for claiming authorship, but adding substantial human editorial input could make portions of the work eligible for protection.

b. Practical Implications for Copyright Practitioners

For attorneys advising clients who use AI tools for creative content, the Copyright Office’s recommendations underscore the importance of clearly documenting human involvement in the creative process. Authors, musicians, filmmakers, and designers who rely on AI must ensure that their creative contributions go beyond passive input and can be demonstrably identified within the final work.

Businesses that deploy AI in content creation should also develop clear internal policies regarding authorship and rights ownership. Contracts involving AI-generated works may need to specify how copyright ownership is allocated and whether modifications or additional creative input are required to qualify for protection. As more companies integrate AI into their workflows, properly structuring these agreements will be essential to mitigating legal risks.

IV. Key Differences Between the USPTO and Copyright Office Approaches

While both agencies acknowledge the growing role of AI in intellectual property, their recommendations reflect distinct approaches to the issue. The USPTO is primarily concerned with AI’s role in the inventive process and how it fits within the patent framework, whereas the Copyright Office is focused on maintaining clear distinctions between human and machine-generated works. The USPTO appears open to future discussions about AI’s role in inventorship, whereas the Copyright Office has taken a firmer stance against recognizing AI-generated works for copyright protection unless substantial human input is demonstrated.

V. Future Considerations and Recommendations

As AI continues to advance, practitioners should take proactive steps to adapt to the evolving IP landscape. One of the most important considerations is ensuring that AI-assisted works are carefully documented to clarify the extent of human contribution. Patent attorneys should focus on crafting claims that clearly define the human role in AI-assisted inventions, while copyright attorneys should work with clients to establish workflows that document human modifications in AI-generated content.

Additionally, attorneys advising businesses should help clients develop internal policies around AI usage and rights allocation. Contracts involving AI-generated content should clearly define ownership, authorship, and potential IP risks. As international jurisdictions take varying approaches to AI-generated works, businesses operating globally must stay informed on how different legal systems treat AI-assisted innovations and creative content.

Lastly, practitioners should remain engaged with policy discussions and industry dialogues surrounding AI and intellectual property. Both the USPTO and Copyright Office have indicated that ongoing assessments of AI’s impact on IP law will continue, and future rulemaking or legislative efforts may emerge to further clarify these issues.

VI. Potential Litigation Issues Surrounding AI and IP

a. Patent Litigation Challenges

One major area of potential litigation involves inventorship disputes. While the USPTO maintains that only humans can be inventors, legal challenges may arise over whether AI’s contributions to an invention warrant recognition. If an AI-assisted invention is improperly credited to a human inventor, litigants may argue that the patent is invalid due to incorrect inventorship claims. Future cases may also challenge whether the refusal to recognize AI as an inventor unfairly limits patent protection for AI-driven innovations.

Another significant litigation risk concerns prior art and obviousness. As AI tools enhance prior art searches, defendants in patent infringement cases may argue that AI-generated prior art should invalidate existing patents. This could lead to new legal standards for evaluating whether an AI-generated reference is truly analogous to prior art created by humans.

b. Copyright Disputes and AI-Generated Works

In the copyright realm, litigation may arise over the scope of human authorship in AI-assisted works. If a party claims copyright ownership over a work that was substantially generated by AI, opposing parties may challenge the validity of the copyright, arguing that it lacks sufficient human authorship. These cases will likely test the limits of the Copyright Office’s guidelines and could lead to court rulings clarifying what constitutes a meaningful human contribution in an AI-assisted work.

Businesses using AI-generated content could also face litigation over infringement claims. If AI is trained on copyrighted materials and produces similar outputs, copyright holders may sue for unauthorized derivative works, arguing that the AI’s training data directly influenced the new creation. Courts will need to grapple with whether AI-generated outputs constitute transformative works or impermissible reproductions.

VII. Conclusion

While the USPTO is refining patent and trademark examination procedures and considering long-term implications for AI inventorship, the Copyright Office remains firm on requiring human authorship for copyright protection.

For legal practitioners, these developments underscore the need to stay ahead of evolving policies, help clients document their human contributions to AI-assisted works, and prepare for potential regulatory changes. AI’s role in intellectual property will only continue to expand, and those who adapt to these shifts will be best positioned to navigate the challenges and opportunities of this new technological era.

Citations
i. U.S. Patent & Trademark Office, AI Strategy (Jan. 12, 2025), https://www.uspto.gov/initiatives/artificial-intelligence/ai-strategy.
ii. U.S. Copyright Office, Copyright and Artificial Intelligence, Part 2: Copyrightability (Jan. 29, 2025), https://www.copyright.gov/ai/Copyright-and-Artificial-Intelligence-Part-2-Copyrightability-Report.pdf.
iii. Thaler v. Vidal, 43 F.4th 1207 (Fed. Cir. 2022).
iv. U.S. Copyright Office, Notice of Inquiry on Artificial Intelligence and Copyright (Aug. 2023), https://www.copyright.gov/ai/notice-of-inquiry.pdf.
v. European Parliament, Artificial Intelligence Act Proposal COM (2021) 206 final (Apr. 21, 2021), https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A52021PC0206.
vi. Standing Committee of the National People's Congress (China), Regulations on AI-Generated Content (2023), https://npc.gov.cn/english/law.