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James Gatto

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Jim Gatto is a partner in the Intellectual Property Practice Group in the firm’s Washington, D.C. office. He is Co-Leader of the Artificial Intelligence Team, the Blockchain & Fintech Team, and Leader of the Open Source Team.

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The U.S. Patent and Trademark Office (USPTO) has issued updated examination guidance (“New Guidance”) on inventorship in applications involving artificial intelligence (AI). The document rescinds and replaces the February 13, 2024 guidance and clarifies how inventorship should be determined when AI is used in the inventive process. The New Guidance jettisons the Pannu test for this purpose, which focused on joint inventorship issues, and instead focuses on conception. This action is another step by the new USPTO leadership to bolster the patent system. It remains to be seen whether the courts will agree with this approach. It is possible that some patents will be granted by the USPTO under this guidance but be found invalid by the courts. This will remain highly fact dependent. Below is a detailed breakdown of the key changes and practical implications for patent strategy across utility, design, and plant filings.Continue Reading USPTO’s Revised Inventorship Guidance for AI-Assisted Inventions: What Changed, What Stayed, and What Practitioners Should Do Now

A New York court just decided some important preliminary motions (which I previously covered here in this post) involving allegedly unauthorized AI cloning of voice actors. The court reached a split decision, concluding “that, for the most part, Plaintiffs have not stated cognizable claims under federal trademark and copyright law. However, that does not mean they are without a remedy. Rather, claims for misappropriation of a voice, like the ones here, may be properly asserted under Sections 50 and 51 of the New York Civil Rights Law [which protect name, image and likeness], which, unlike copyright and trademark law, are tailored to balance the unique interests at stake. Plaintiffs also adequately state claims under state consumer protection law and for ordinary breach of contract.”Continue Reading Voices on Trial: Voice Actors, AI Cloning, and the Fight for Identity Rights

The use of AI recording tools has become prevalent. Companies’ policies addressing the legal issues with these tools is not yet as prevalent. If your company’s AI policy does not address these issues, it needs to be updated. A recently filed class action stems from one fact scenario where legal issues may arise. It is not the first suit against AI recording and it will not be the last. The lawsuit claims violation of the Federal Wiretap Act. 18 U.S.C. § 2510 et seq based on use of a third party service that records and perform AI analysis on calls between a dental company and its patients. Details of this lawsuit are provided below. However, it is important to understand that if your company or your employees use AI recording tools or notetakers, you need to ensure that your AI policy covers all of the necessary issues. These issues can include at least: i) managing and documenting notice and consent; ii) dealing with nonconsenting parties participating in a call being recorded; iii) inaccuracies of AI generated transcripts and summaries; iv) AI generated sentiment analysis/emotion detection; v) confidentiality and privilege issues; vi) retention and/or deletion of recordings; vii) vendor diligence on these tools and approval process for specific tools; and viii) knowing the technical features of some tools that can help mitigate risk and others that can create more risk.Continue Reading “Listen Up” if Your AI Policy Does Not Cover AI Recording Issues – Another Class Action Lawsuit Filed Over Third Party AI Recording Service

For many reasons, existing open source licenses are not a good fit for AI. Simply put, AI involves more than just software and most open source licenses are designed primarily for software. Much work has been done by many groups to assess the open source license requirements for AI. For example, the OSI has published its version of an AI open source definition – The Open Source AI Definition – 1.0. Recently, the Linux Foundation published a draft of the Open Model Definition and Weight (OpenMDW) License.Continue Reading AI Drives Need for New Open Source Licenses – Linux Publishes the OpenMDW License

The Copyright Office released a “Pre-publication” version of Part 3 of its Report on Copyright and AI. Coincidentally (?) Shira Perlmuter, the Register of Copyrights, was fired amid a shakeup at the Copyright Office. The Report was also supposed to address infringement issues, but did not. Those issued will now be addressed in a Part 4 of the Report. Continue Reading Copyright Office Report on Training AI and Fair Use

We previously reported on the groundbreaking AI Fair Use ruling in the Thomson Reuters Ross Intelligence case, where the court found that based on the facts of this case fair use was not a defense. Ross Intelligence moved, pursuant to 28 U.S.C. § 1292(b), for certification of the Court’s Order, for interlocutory appeal and for a stay pending that appeal. The Court has now granted that request.Continue Reading Court Grants Interlocutory Appeal on AI Fair Use Issue

The power of large language models (LLMs) that enables generative AI derives from vast quantities of data. Much of this data comes from scraping all forms of content from the internet. Despite the benefits, this practice raises numerous legal issues, some of which implicate IP issues. Dozens of pending lawsuits in the US alone include claims involving IP issues with data scraping. The recent OECD report titled “Intellectual Property Issues in AI Trained on Scraped Data” (Report) explores the intricate relationship between AI and IP rights, particularly focusing on data scraping practices used in AI training. It aims to provide policymakers with insights into the legal challenges posed by data scraping and potential policy approaches to address these issues. The following is an overview of the Report.Continue Reading OECD Report on Data Scraping and AI – What Companies Can Do Now as Policymakers Consider the Issues

While AI has many people uptight, Aescape has developed technology to help you relax – AI robotic massage. Aescape touts that it combines the timeless art of massage with robotics and artificial intelligence to deliver an exceptional massage experience every time. The “Aertable” (i.e., the massage table) has bolsters, headrests, and armrests that are all adjustable to provide a customized fit during each session. It also has continuous feedback which allows for real-time adjustments to optimize comfort. The “Aerscan” system captures 1.2 million data points, precisely mapping your body’s muscle structure to create a unique blueprint for a highly personalized massage experience. “Aerpoints” replicate the seven touch techniques of a skilled therapist, simulating the knuckle, thumb, cupped hand, blade of hand, palm, forearm, and elbow. The “Aerview” provides personal control so you can adjust the pressure, manage the music, or customize the display to create a session tailored to your preferences, needs and mood. The company has developed “Aerwear” a high-compression performance fabric that enhances body detection for the system and allows Aerpoints to move smoothly over your body. Wearing it is mandatory during the massage. The tables are equipped with advanced safety features, including force sensors and pause and emergency stop features to prevent or abate issues if things go wrong. Aescape is a classic example of an application of AI and robotics that will interact with humans. We will see many more such applications from this point forward. While Aescape seems to have anticipated some of the potential problems that can arise, any AI robotic application that interacts with humans has the potential for a variety of legal issues. The following are some of the general legal issues that may be relevant to AI robotic applications that interact with humans. But the actual issues will vary by application.Continue Reading If You Are Uptight About AI, This May Relax You

Individually, AI and blockchain are among the hottest, most transformative technologies. Collectively, they are incredibly synergistic – hence the 1+1=3 concept in the title. We are seeing more examples of how the two will interact. Over time, the level of interaction will be extensive. Many projects are being developed that bring the power of AI to blockchain applications and vice versa. One of these projects that has garnered significant attention is the Virtuals Protocol. The project launched in October 2024 via integration with Base, an Ethereum layer-2 network. Just recently, the project announced that it is expanding to Solana. Continue Reading AI and Blockchain – 1+1 =3

In one of the most closely-watched copyright cases this year, a Delaware court rejected defendant, ROSS Intelligence’s (“ROSS”), fair use and other defenses by vacating its previous stance and granting summary judgement in favor of plaintiff, Thomson Reuters (“Reuters”). The case stems from allegations that ROSS used copyrighted material from Reuters’ legal research platform, Westlaw, to train its artificial intelligence (“AI”)-driven legal research engine. While the decision will certainly be informative to the dozens of pending lawsuits against AI developers, it is important to note the scope of the opinion is limited to the specific facts of this case. Specifically, generative AI was not involved, and the court’s analysis of the fair use factors was heavily focused on the fact that the parties are direct competitors.Continue Reading Court Definitively Rejects Fair Use Defense in AI Training Case

Defendant Lovo has moved to dismiss an amended complaint alleging that the voice actor Plaintiffs’ voices were unlawfully cloned by Defendant Lovo’s AI Voice Generator. Plaintiffs allege that Lovo’s CEO stated on a podcast that: “voice cloning refers to a virtual copy of a real person’s voice. Rather than using machine learning to synthesize an original AI voice, voice cloning technology replicates an existing human voice.” Allegedly, in a little over a year, LOVO users have created over seven million voice-overs including many based on narrations allegedly “stolen” from real actors.Continue Reading Lovo “Voices” Opposition to Suit Over “Kitchen-Sink” Approach to Alleged AI Voice Cloning