AI changing the game on intellectual property, making it more important than ever

In the age of artificial intelligence, what constitutes intellectual property is shifting, down to owning your own likeness or style of writing, song or even athletics.

The law has not yet caught up to the burgeoning technology, said Heather Kliebenstein, managing director of the 125-year-old Minneapolis-based law firm Merchant & Gould.

But the mechanisms to protect that property is still fundamentally the same in copyrights, trademarks and patents, she said.

Merchant & Gould had concentrated mainly on the Twin Cities for the first 100 years but since 2000 it has expanded geographically while remaining focused on intellectual property. It now has around 100 lawyers in offices in Atlanta, Denver, Knoxville, Los Angeles, New York and Washington, D.C. most of them now outside of Minneapolis.

“There’s lots of law firms that can do intellectual property, but we’re one of the only ones nationwide that can do it deeply,” Kliebenstein said. “Whatever your IP problem is — we’ve seen it 100 times before.”

The firm has a number of the Twin Cities’ largest companies as clients, including Bloomington-based Donaldson Co. Inc. which Merchant & Gould represented in a 1989 patent appeal for one of Donaldson’s key industrial air filtration devices.

Kliebenstein, in this interview edited for length and clarity, covers topics from the innovation in Minnesota to emerging trends in intellectual property and the roll artificial intelligence is playing.

A: With the advent of AI, my prediction is that things that are built by humans are going to become very valuable. That’s going to be sports, that’s going to be entertainment, music, fashion, and so we’ve been seeing growth in those areas throughout the firm, and I think it’s just going to continue.

Q: Where do you see innovation and IP going?

A: I think it’s going to continue along the same path. You know, we’re at a moment in time where technology is being developed that is really revolutionary. It’s not just an additive on prior technology. I think it’s going to still revolve around patents, trademarks and copyrights. However, the lines are getting very blurred.

Q: How are the lines getting blurred?

A: With AI, you have copyright issues, but you also have right of publicity and name, image and likeness issues intertwined in it, right. lf you’re asking [AI] to write in the style of JK Rowling, well, it’s a copyright issue. But it also goes into her ownership of who she is and how she writes and the style that she uses. Those are areas of intellectual property that our laws have not caught up with yet.

A: It’s an evolving process. We’ve always counseled clients to keep good notes, to keep a record of the development of the invention and to be mindful of what you share outside of the company. Now AI tools are one of those outside of the company things. So those frameworks are still the same, but the need for more significant documentation is taking greater importance.

Q: How can Minnesota maintain and build on its its reputation as an innovation center?

A: From what I see, our companies that are headquartered here are investing heavily in R&D and innovation and recognize the importance of expanding on that.

Q: How should small businesses and startups protect their intellectual property?

A: Get good counsel from the get-go. There’s so many people in the Twin Cities that are well-versed in technology and innovation, so pulling those people in as your early board members. We also have a lot of really good startup networks here in the Twin Cities. And so joining those networks and participating in them meaningfully.