Intellectual Property

An AI Take On IP

Does ChatGPT read my column? It sure gives off that impression. 

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artificial-intelligence-4111582_1920Spurred on by an interesting conversation I had with some AI researchers about how their work could be of help to my practice, I decided to put perhaps the most famous AI entity of our times, ChatGPT, to the test. In a pique of egocentrism, my task for ChatGPT was as follows: “write an Above the Law IP column in the style of Gaston Kroub.” Before I share an excerpt of the result, I must also add my voice to the chorus of voices that have expressed astonishment at how quickly ChatGPT is able to generate — if not elegant, at least serviceable — content when prompted. As with anything else, we will soon learn to take this wonderful, and similar, AI tools for granted. But for now, it is humbling and exciting to be among the first humans in history to engage with this new technology.

In an interesting twist, ChatGPT interpreted my request for a column as an invitation to draft up the equivalent of a podcast introduction. Here is how it started:

Welcome back to another edition of the Above the Law IP column! I’m your host, Gaston Kroub, and today we’re diving into the fascinating world of intellectual property law.

Maybe it is time for the Above the Law IP column podcast, but until that kicks off, if ever, I am happy that ChatGPT acknowledges my enthusiasm for IP law. Hopefully that will always shine through for readers of this column.

Next, our AI virtual columnist provided a succinct summary of a case that I have discussed on these pages, the heavyweight tilt between Google and Oracle. Here is ChatGPT’s take:

First up, let’s talk about the recent Supreme Court decision in the case of Google v. Oracle. This was a major victory for Google, as the Court ruled that Google’s use of Oracle’s Java programming code in the development of the Android operating system constituted fair use. This decision has significant implications for the software industry, as it clarifies the scope of copyright protection for computer code and affirms the importance of fair use as a defense.

Not a bad summary of what I, and many others, wrote about the SCOTUS decision in that case — from the characterization of the result as a Google victory, to the increased importance of fair use as a defense in copyright cases. I don’t know whether ChatGPT read my column, but it sure gives off that impression.

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After that little taste of copyright coffee cake, ChatGPT’s attempt at mimicking yours truly turned to another frequent topic on these pages, patent eligibility or the bewitching siren known as Alice to all of us in the patent world. Here is ChatGPT’s effort:

Next, let’s turn our attention to the ongoing debate over patent eligibility. As many of you know, the Supreme Court’s 2014 decision in Alice Corp. v. CLS Bank has had a major impact on the patent landscape, leading to a significant number of patents being invalidated for claiming abstract ideas. While some have praised the decision as a necessary step to curb overly broad and frivolous patents, others argue that it has gone too far and is stifling innovation.

I can’t argue with any of our favorite AI bot’s points on the merits, since Alice continues to sow seeds of fear into patent owners big and small, while busy jurists around the country continue to dispatch patent cases before them to early demises on the basis of eligibility challenges. Perhaps most importantly, the debate about the impact of Alice on the innovation ecosystem in the U.S. continues to rage, as ChatGPT alludes to in the final sentence of its paragraph on the topic.

Having discussed two SCOTUS IP cases of tremendous import, ChatGPT in the voice of GK then composed a little paean to the value of IP in the entrepreneurial realm, as follows:

Finally, let’s talk about the importance of IP protection for startups and small businesses. In today’s fast-paced and competitive marketplace, it’s more important than ever for companies to protect their intellectual property assets. Whether it’s through patents, trademarks, or copyrights, a strong IP portfolio can provide a valuable competitive advantage and help ensure the long-term success of a business.

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Here again, it is hard to argue with our robotic wordsmith, since it remains true that a “strong IP portfolio can provide a competitive advantage” in today’s global economy, particularly for startups and small businesses. Still, I would throw in a good word for the continued importance of IP lawyers, whether they sit in-house or as outside counsel, in terms of helping guide companies in maximizing their investments in IP — including with respect to smart enforcement when circumstances demand that such action be pursued. If it is “more important than ever for companies to protect” their IP, as ChatGPT posits, I would submit that the importance of good IP counsel remains as high as it has ever been — irrespective of the size of the IP holder. Even in the age of AI, therefore, I am sure that IP attorneys will retain their value, especially if they learn to harness the promise of AI tools like ChatGPT to further the interests of their clients.

Let’s finish by giving our charming AI host a chance to serenade us with a booming send off to this week’s column:

That’s all for today’s edition of the Above the Law IP column. Join me next time as we continue to explore the latest developments in intellectual property law.

Please feel free to send comments or questions to me at gkroub@kskiplaw.com or via Twitter: @gkroub. Any topic suggestions or thoughts are most welcome.

Gaston Kroub lives in Brooklyn and is a founding partner of Kroub, Silbersher & Kolmykov PLLC, an intellectual property litigation boutique, and Markman Advisors LLC, a leading consultancy on patent issues for the investment community. Gaston’s practice focuses on intellectual property litigation and related counseling, with a strong focus on patent matters. You can reach him at gkroub@kskiplaw.com or follow him on Twitter: @gkroub.

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