Intellectual Property in the Age of AI: Navigating Patentability, Trademarking and Copyright Ownership of AI-Generated IP


D&P Law Now

Intellectual Property in the Age of AI: Navigating Patentability, Trademarking and Copyright Ownership of AI-Generated IP


The rapid advancement of artificial intelligence (“AI”) is reshaping the legal landscape of intellectual property (“IP”) in Malaysia. As the use of AI and IP rights converge, new questions arise regarding patentability, trademarking, and copyright ownership of AI-generated IP. Understanding how existing laws and regulations apply to this evolving field is crucial in navigating the complexities of AI-driven innovation.

Patentability of AI-Generated Inventions

The patent system aims to safeguard novel and non-obvious inventions, granting exclusive rights to inventors for a limited period. However, the emergence of AI challenges traditional notions of inventorship by introducing autonomously generated inventions, blurring the line between human and machine innovation.

In Malaysia, the Patents Act 1983 governs the patentability inventions. To qualify for patent protection, an invention must meet certain criteria such as novelty, inventive step, and industrial applicability. The question arises as to whether an AI-generated invention can be considered ‘novel’ under these standards.

An illustrative case is the joint patent filed by Exscientia and Sumitomo Dainippon Pharma in 2020 for the AI-discovered molecule DSP-1181. This molecule, designed using AI algorithms, entered human clinical trials and shed light on the patentability of AI-generated inventions in the pharmaceutical industry. While Malaysia’s stance on AI-generated patents is yet to be determined, emphasising the unique features and advancements facilitated by the AI invention can bolster the chances of securing a patent.

Trademarking AI-Generated Logos

In Malaysia, trademarks are governed under the Trademarks Act 2019. Trademarks play a vital role in distinguishing the origin of goods and services and protecting the reputation of businesses. With the rise of AI, questions arise about the eligibility of AI-generated logos for trademark protection.

Trademark registration for AI-generated logos follows the same principles as traditional trademarks. To ensure eligibility, businesses must ensure that their AI-generated logo meets the criteria for distinctiveness and is not confusingly similar to existing trademarks.

However, challenges may arise when an AI-generated logo infringes upon or draws certain elements from  someone else’s trademark. In such cases, legal action can be taken by the trademark owner. To mitigate the risk of AI-generated logo infringement, businesses should adopt the following best practices:

  1. Conduct thorough trademark searches: Before adopting an AI-generated logo, it is crucial to conduct comprehensive searches to ensure that no similar or identical trademarks already exist. This can help avoid potential conflicts and legal disputes.
  2. Regularly monitor trademark databases: Keeping a vigilant eye on trademark databases and monitoring potential infringements can help businesses identify and address any unauthorised use of AI-generated logos.

Copyright of AI-generated IP

Copyright ownership in Malaysia is governed under the Copyright Act 1987. Typically, copyright is granted to the creator or author of a work. However, when an AI system autonomously generates a content which can be copyrighted, the rightful owner becomes unclear.

If we consider the possibility of recognising non-human entities as ‘authors’, one of the complexities that arises involves determining the appropriate duration of copyright for AI-created works. Currently, copyright laws in Malaysia provide protection for a work throughout the author’s lifetime and an additional 50 years thereafter. If a computer or machine is acknowledged as a qualified author of AI-generated works, it raises the prospect of potentially indefinite copyright protection for such works under existing legislation.

In 2018, a group of researchers at Rutgers University created an AI system called “AICAN” capable of generating unique artworks. These AI-generated artworks raised questions about copyright ownership. While the AI system autonomously produced the artworks, the researchers claimed authorship as they trained and controlled the AI.

While Malaysian law does not explicitly address ownership of AI-generated works, the AICAN case highlights the importance of human involvement in the creative process. If a human has made significant contributions or exercised control over the AI system’s output, they are more likely to be deemed the author or creator. However, if the AI system operates autonomously without human intervention, ownership becomes more nuanced. Businesses utilising AI systems are advised to clarify ownership and rights through contractual agreements with individuals involved in the creation process.

Key Takeaway

Navigating the intersection of AI and IP in Malaysia is essential. Challenges in patentability, trademarking, and copyright ownership of AI-generated IP require careful consideration. Key factors businesses may want to consider include proving novelty for patents, conducting and monitoring trademark databases before trademarking AI-generated logos and clarifying ownership of AI-generated works through contractual agreements.

Get in touch with us if you have any questions regarding IP Law! We regularly advise both international and domestic clients on all matters regarding Malaysian IP Law.