Expert Editorial: Protecting Your Artificial Intelligence Innovations

Many in the wine business are wondering how to properly protect their AI innovations. A few tried-and-true routes to safety include patents, copyrights and trademarks.

By David McCombs, Eugene Goryunov,
Dina Blikshteyn, and Austin 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 accomplished using, as an 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 capture images of the vines. These images are analyzed by AI to determine how the grapes are faring and which branches need to be trimmed. California-based software developer Tule Technologies makes machines that take short videos of randomly-selected grape vines and use AI to determine the plants’ leaf water potential or thirstiness.

Australian software company Ailytic uses AI to optimize mass-production and increase efficiency in manufacturing industries. Its proprietary AI considers the temperature of production, order of production and wine changeover. It also ensures that appropriate glassware is used for different wines and that the wine is labeled and packaged correctly.

Consumer-facing AI

AI can also detect flavor and “taste” 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-taint” (an undesirable flavor that’s present in vines tarnished by wildfire smoke). 

Pairing wine with food is an important method for selling wine. Media conglomerate Meredith Corporation and Ste. Michelle Wine Estates partnered with Meredith-owned AllRecipes.com to pair wines and recipes while a user is browsing food recipes in real time. The companies use AI to combine wines and recipe classifications to automatically generate an ideal wine pairing for each posted recipe. The wines are then displayed next to the recipes online with information on where and how to purchase them.

AI is also involved in post-production strategies. Australia’s online retailer Just Wines uses AI to segment its customer base and drive targeted personalized interactions. By using AI, the company reduced the overall number of communications sent to customers while also improving customer acquisition and retention through meaningful and timely advertisements.

Protect Your Innovation

With such a rapidly changing industry landscape, intellectual property protection for AI innovations has become a major focus for wine producers. Selection of the appropriate 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 written carefully, AI-related patents may be characterized by the United States Patent & Trademark Office as “abstract,” meaning that the Patent Office might characterize the claimed invention as being directed to patent-ineligible subject matter. It’s also not uncommon for the Patent Office to reject AI claims as “indefinite,” because the patent application fails to provide enough support and explanation for how the AI works. 

Nevertheless, there are many strategies that skilled practitioners use to ensure that AI patent applications issue as viable — i.e., enforceable — patents that comply with the law and provide broad protection for the inventors and applicants. 

Copyrights protect original works of authorship fixed in a tangible medium. Some examples include literary works, musical works, computer programs and sound recordings. Traditionally, copyrights have been registered to humans. Now, there is a debate as to whether copyrights may be registered to an AI that creates the original work. Courts have been shy to deem AI an “author” on its own and apart from the engineers that created the AI itself. 

Regardless of whether AI can obtain copyrights on its own, copyrights still serve a valuable role for the creators of AI systems. The creators themselves and/or their companies may register copyrights for AI they have created. As an example, the results of the wine-pairing algorithm on AllRecipes.com could benefit from copyright protection. While recipes themselves aren’t protectable, the automated pairings generated by AI could be copyrighted after they appear tangibly on the human-designed webpage. 

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

As an example, producers cater to the preferences of their consumers to sell wine. Suppose a producer gains trust in the AI deployed by Tastry to decode flavors and make wine pairing recommendations. As competition grows, that producer will begin to distinguish Tastry’s AI services from those of competitors by the trademarks employed by Tastry and the services associated with it.

Stay Safe 

The type of intellectual property protection that one may seek depends highly on the AI innovation in question. Some AI innovations may, as a legal matter, be only subject to one type of protection. More than one form of protection may be appropriate — and even required — where the AI innovator, together with their attorney, concludes that the AI innovation straddles multiple intellectual property types.

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 an edge over its competition, and is fully compensated in the event of trade secret theft, plagiarism or infringement.  

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The contributing authors are all members of the Intellectual Property group at global law firm Haynes Boone. David McCombs, partner, has over 35 years of experience and is primary counsel for many leading corporations in inter partes review and is regarded as one of the most active attorneys appearing before the Patent Trial and Appeal Board.

Eugene Goryunov, partner, is an experienced trial lawyer and has been involved in nearly 200 trials on behalf of both Petitioners and Patent Owners at the USPTO.

Dina Blikshteyn, counsel, is co-chair of the Artificial Intelligence practice at the firm and focuses her patent practice on technology areas.

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