Intellectual Property (IP) law refers to the legal rights granted to businesses and people over their creative ideas, including inventions, brand names, logos, designs, images, and literary works utilized in commerce.
Businesses and artists must understand and comply with these regulations to prevent others from copying or exploiting their ideas and stay ahead of the competition.
In this post, we’ll discuss a few key recent changes in intellectual property law and how they might affect your business to help you make informed choices that effectively protect your unique assets.
3 Recent Developments in IP Law
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Artificial Intelligence (AI) and Copyright Law
AI has quickly transformed the creative industries by allowing machines to produce literature, music, art, scientific research, and more.
This unprecedented rise of AI has prompted new legal questions: Can AI be regarded as an author? And who owns the rights to AI-generated works?
In 2018, Dr. Stephen Thaler filed for copyright registration for a piece of visual art that was entirely created by his AI system, the Creativity Machine, before the public discussion surrounding generative AI and copyright reached the ferocity it is today.
Thaler’s application was rejected by the U.S. Copyright Office (USCO), the body responsible for registering copyright claims, on the grounds that the creation wasn’t the result of human creativity, which is a prerequisite for any work of art to be eligible for copyright.
At the U.S. District Court for the District of Columbia, Thaler contested the USCO’s ruling, requesting the court to determine “whether a work autonomously generated by an AI system is copyrightable.”
In August 2023, the court reiterated that “copyright law only protects works that were created by human authors,” upholding the Copyright Office’s action to deny Thaler’s copyright registration application.
The main lesson from the court ruling is that, since copyright needs human authorship, if you’re an artist or business owner and you solely use AI to create software, photos, music, etc., your work is not protected by IP laws, leaving it vulnerable to be distributed or copied without permission.
This is not to say that AI cannot be used for creativity.
The U.S. Copyright Office revealed in a webinar that AI-generated content may be copyrightable if you incorporate human input, such as rewriting AI-generated text or altering an image with programs like Adobe Photoshop.
The likelihood that an AI-generated piece will be protected by copyright increases with the amount of improvement you, the human author, make to it.
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Federal Ban on Non-Compete Agreements
Nearly 30 million employees in America have signed non-compete agreements.
These agreements have long been used as a legal instrument to keep sensitive company information—from internal operations to trade secrets—out of the hands of opponents and to stop employees from using the data to launch rival businesses.
Usually, they accomplish this by limiting where and when highly qualified or technically proficient workers, especially in the IT and healthcare industries, can be hired. In April 2024, the Federal Trade Commission (FTC) outlawed the usage of most non-compete agreements countrywide, claiming that they hinder innovation and restrict workers’ access to better employment opportunities.
Business organizations have vigorously opposed the ban, arguing that it could raise the risk of IP theft and trade secret leaks, and have challenged its implementation in court.
While awaiting the court’s decision on the FTC ban, several U.S. states have already made it unlawful to enforce non-compete agreements, including California, North Dakota, Oklahoma, and Washington, D.C.
Businesses must now consider using alternative strategies to protect their IP assets due to the increased state and federal regulation of non-compete agreements. These strategies can include using non-disclosure agreements, which still offer protections without limiting employees’ freedom to practice their profession.
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March-in Rights Guidance
Annually, the federal government spends billions of dollars on research and development at companies of all sizes, non-profits, and colleges, leading to the creation of hundreds of new inventions.
The 1980 Bayh-Dole Act gives these businesses and universities ownership of the intellectual property they develop with government funding, allowing them to control the commercialization process. However, federal agencies still have the power to “march in.”
Under certain circumstances, march-in rights give the government the authority to compel patent holders to license to other applicants publicly funded inventions. These rights are intended to increase the public’s access to and affordability of inventions that are supported by taxpayers’ money.
No federal agency has used its march-in privileges in the 40+ years that the Bayh-Dole Act has been in effect.
However, since the National Institute of Standards and Technology published guidelines late last year that clarified when these rights can be exercised, march-in rights are once again the focus of political discussion. Advocates have urged the government to utilize its march-in rights more often, particularly in the pharmaceutical sector, to increase access to federally financed drugs by granting patents to more manufacturers, thus promoting competition and bringing down medication costs.
Consequently, you should prepare for potential changes in intellectual property control and costs should march-in rights be more actively enforced if your company depends on government funding for research.
Let Gallagher Krich, APC, Help You Protect Your IP Asset
You need skilled counsel now more than ever to safeguard your intellectual property because of the landmark cases that are changing patent protections, the constant shifts in AI-related IP legislation, and the increasing complexity of international trademark laws.
As specialists in intellectual property law, we at Gallagher Krich, APC, are prepared to help you navigate the most recent developments in IP law so that your trade secrets, patents, trademarks, and other important business assets remain safe.
To arrange your free consultation with an experienced intellectual property lawyer who will walk you through the latest IP laws and explain how we can support you to comply with them, give us a call at (858) 926-5797 or complete our online form today.
Together, we can protect the things that are most important to your company from unauthorized use!
Thomas F. Gallagher, Esq. is a founding partner of Gallagher Krich, APC, a San Diego law firm focused on business law, civil litigation, and contract disputes. With over 30 years of legal experience, Tom provides strategic counsel to business owners, entrepreneurs, and professionals navigating complex legal challenges across California.
His practice includes drafting and negotiating commercial contracts, resolving business disputes, and advising clients on corporate governance, regulatory compliance, and risk management. Read more »
