Expert Editorial Commentary: Protecting Your Artificial Intelligence Innovations

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Many in the wine industry are wondering how to properly protect their AI innovations. Some proven routes to security include patents, copyrights, and trademarks.

By David McCombs, Eugene Goryunov,
Dina Blikshteyn and Auston Lorch

Artificial intelligence (AI) can be found in virtually all aspects of modern life, from manufacturing to healthcare, finance, social media and more. In the wine industry, AI is involved in everything from wine production to wine distribution — and even wine recommendation. This is achieved using, for example, agricultural robots, flavor and food pairing predictors, production efficiency analysis and advanced marketing tools.

Japanese Agricultural Machinery Company Kubota makes machines that move autonomously around a vineyard and take pictures of the vines. These images are analyzed by AI to determine how the grapes are doing and which branches need to be pruned. Software Developer in California Tule Technologies creates machines that create short videos of randomly selected vines and use AI to determine the plants’ leaf watering potential or thirst.

Australian software company Ailytic uses AI to optimize mass production and increase efficiency in the manufacturing industry. The patented AI takes into account the production temperature, the production sequence and the wine change. It also ensures that appropriate glassware is used for different wines and that the wine is properly labeled and packaged.

Intellectual property protection for AI innovations has become a major focus for wine producers. [iStock]
Intellectual property protection for AI innovations has become a major focus for wine producers. [iStock]

Consumer-oriented AI

AI can also detect taste and “taste” of wine, which can help retailers predict how the wines they sell will be perceived by consumers. The same technology can also be used to detect “smoke odor” (an unwanted taste present in vines affected by wildfire smoke).

Pairing wine with food is an important method of selling wine. media conglomerate Meredith Corporation and ste. Michelle Wine Estates along with Meredith property AllRecipes.com to pair wines and recipes as a user browses food recipes in real time. The companies use AI to combine wines and recipe classifications to automatically generate an ideal wine pairing for each recipe posted. The wines are then displayed online alongside the recipes with information on where and how to buy them.

AI is also involved in post-production strategies. Australia’s Online Store Just wines uses AI to segment its customer base and drive targeted personalized interactions. By using AI, the company reduced the total amount of communications sent to customers, while also improving customer acquisition and retention through meaningful and timely advertising.

Protect your innovation

With such a rapidly changing industry landscape, protecting intellectual property for AI innovations has become a major focus for wine producers. Selection of the right type of intellectual property protection – be it patents, copyrights, or trademarks – is best explored with an attorney familiar with the technology or process being protected.

Patents are a great way to protect AI. At the same time, there are unique challenges in obtaining patent protection in this technology area. If not carefully written, AI-related patents may be characterized by the United States Patent & Trademark Office as “abstract,” meaning that the Patent Office could characterize the claimed invention as targeting patent-ineligible subject matter. It is also not uncommon for the Patent Office to dismiss AI claims as “undetermined” because the patent application does not provide sufficient support and explanation for how the AI ​​works.

Nevertheless, there are many strategies that experienced practitioners use to ensure that AI patent applications are issued as viable — ie, enforceable — patents that comply with the law and provide broad protection to the inventors and applicants.

More than one form of protection may be appropriate - even required. [iStock]
More than one form of protection may be appropriate – even required. [iStock]

Copyrights protect original works of authorship recorded in a material medium. Some examples are literary works, musical works, computer programs and sound recordings. Traditionally, copyrights have been registered with people. Now there is a debate about whether copyrights can be registered on an AI that makes the original work. Courts were shy to consider AI an “author” in its own right and separate from the engineers who created the AI ​​themselves.

Regardless of whether AI can only obtain copyrights, copyrights still fulfill a valuable role for the creators of AI systems. The creators themselves and/or their companies can register copyrights for AI they have created. For example, the results of the wine pairing algorithm on AllRecipes.com can benefit from copyright protection. While recipes themselves cannot be protected, the automated links generated by AI may be copyrighted after they tangibly appear on the human-designed web page.

Finally, trademarks (such as Watson, Siri, Cortana, and Alexa) allow users to easily identify their AI platform. Obtaining trademark protection for AI technologies in the wine industry could also differentiate a company’s AI technology from its competitors.

For example, producers cater to their consumers’ preferences for selling wine. Suppose a producer gains confidence in the AI ​​deployed by: Tasting until decode flavors and make wine pairing recommendations† As competition intensifies, that producer will begin to differentiate Tasry’s AI services from those of competitors through the trademarks used by Tastry and associated services.

Watch your safety

The type of intellectual property protection one can seek depends a lot on the AI ​​innovation in question. Legally, some AI innovations can only be subject to one type of protection. More than one form of protection may be appropriate – and even required – when the AI ​​innovator, along with their lawyer, concludes that the AI ​​innovation spans multiple types of intellectual property.

Protecting AI in the wine industry is important. A strategy that combines different intellectual property protections ensures that a company protects its AI technology, maintains a competitive edge and is fully compensated in the event of trade secret theft, plagiarism or infringement.

David McCombs
David McCombs

The contributing authors are all members of the Intellectual Property group at a global law firm Haynes Boone† David McCombs, partner, has over 35 years of experience and is chief counsel to many of the leading companies in inter partes assessment and is considered one of the most active attorneys appearing before the Patent Trial and Appeal Board.

Eugene Goryunov
Eugene Goryunov

Eugene Goryunov, partner, is an experienced trial attorney and has been involved in nearly 200 lawsuits on behalf of both applicants and patent holders at the USPTO.

Dina Blikshteyn
Dina Blikshteyn

Dina Blikshteyn, counsel, co-chairs the company’s Artificial Intelligence practice and focuses her patent practice on technology areas.

Austin Lorcho
Austin Lorcho

Austin Lorch, associate, focuses his patent prosecution practice with an emphasis on medical devices and robotic surgical systems.

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