Artificial Intelligence: A Double-Edged Sword for Intellectual Property and Business in Puerto Rico

As an intellectual property and business attorney, the author has witnessed her clients face new challenges and discover opportunities by developing strategies that protect intellectual property (IP) rights and promote business growth in this digital age. To understand how artificial intelligence (AI) affects business and IP, the first port of call must be definitions.

IP is a set of legal rights that protect human creations and grant exclusive control over their use for a specified period. IP seeks to encourage innovation and creativity by providing creators with recognition for their efforts. There are numerous types.

AI focuses on creating systems capable of performing tasks that normally require human intelligence. These systems are designed to imitate reasoning, learning, perception and problem-solving, allowing them to perform various functions autonomously. In the intellectual property space, AI poses several opportunities and challenges for both companies and lawyers.

In terms of trade marks, search and authorisation, detection of infringements, and generation of trade marks are much more efficient. AI can continuously monitor platforms to detect unauthorised use, counterfeit, and imitation products. It helps analyse historical data on trade mark infringement cases to predict future trends and anticipate potential threats, manage trade mark portfolios by identifying expiring brands and prioritising enforcement actions, and generate original and distinctive ideas for brands. For example, the author uses an AI to help search five databases, social networks, and public domains to see if a brand is already being used. It can also be used to find out if an AI created a certain brand. So, instead of taking a week, it takes the author a day to advise the client on whether a trade mark registration is appropriate.

On the other hand, you may inadvertently create infringing content, weakening the distinctiveness and consumer recognition of those brands. It could also lead to consumer confusion if consumers incorrectly associate a product or service with a specific brand due to AI suggestions. Evidence to prove a violation can become more complex, as it can be difficult to demonstrate whether actions were intentional or solely the result of algorithmic processes.

Copyright grants rights to the creators of original works, as long as they are humans. However, AI can create works such as music, art and literature, raising questions about who owns the copyright. This makes it difficult to determine who owns the IP rights.

As a result, questions arise as to if an AI was used when the individual/s wanted to register work or if the publisher or publishing house modified their work using AI without their consent. On the other hand, the publisher can call the author to review a contract and include termination clauses when a client uses AI or specify that their use of AI is a mere tool.

AI can also be used to generate unauthorised copies, increasing the risk of IP infringement and piracy. For example, influencers and artists call the author when they find out a person on social media has duplicated their Instagram account, content and art using AI. There are many remedies that can help, such as the Digital Millennium Copyright Act (DMCA) Takedown that literally takes down electronic pages, the social media reporting system, and the famous cease and desist. They are not perfect, but they are much faster than going to court.

For those who create technologies, plants, processes and medicines, AI can affect their eligibility to register as a patent. The patent needs three requirements:

For example, if an AI could decipher something, that means that a human can decipher it, and just like that, it is disqualified because it is not new, since it is obvious, and you disclosed it ahead of time. On the other hand, AI is giving rise to new technologies and applications that may be difficult to patent, but at the same time, once the patent is obtained, they are easier to find.

AI can be used to automate business processes, improve efficiency and reduce costs. The author is integrating this with clients who want a tailored business plan. The fact that you use a particular AI can affect your trade secret. In addition, it can be used to analyse large amounts of data and provide valuable information for business decision-making. On the other hand, AI has the potential to accidentally reveal or improve processes, recipes, customer data, and many other things that can be considered secrets.

As for the legal profession, AI analyses large amounts of data from patents, trade marks and creative works, which can help lawyers identify trends and opportunities. On the other hand, you have to be very careful when the AI writes a legal memorandum for you because it can cite false cases. So the author recommends that every lawyer validate the information provided by any AI to avoid ethical problems.

AI is revolutionising the intellectual property space. On one hand, AI can help companies protect their IP assets more efficiently and effectively. However, companies and governments must be aware of the challenges posed by AI so that they can develop appropriate policies and practices to address them. Ultimately, IP systems must adapt to reflect the impact of AI, and creators and rights holders must be prepared for the changes ahead.