AI in fashion design

The AI revolution has taken the world by storm, and the fashion world is no exception. Fashion designers have already started using generative AI tools to generate fully-formed fashion designs.¹ Generative AI is also used as part of the design process in other ways. For example, designers can prompt a machine learning (ML) model to generate a specific design element, such as a pattern.² Or, a designer might use AI to generate one or more potential designs for inspiration.³ Finally, a designer might start with an AI-generated design, and then modify that design using their own creative sense.

Fashion brands use AI systems that take a variety of different forms. Some companies may use commercially available AI systems, such as Stability AI’s Stable Diffusion®, which are trained based off publicly-available images.⁴ Others might design their own in-house AI. An in-house AI might be specifically created to solve certain design problems, and trained to use certain styles and techniques. Finally, some companies have created AI systems trained entirely on company-generated design images.⁵

USPTO guidance

While the USPTO will not grant a design patent for designs invented entirely by AI, the creations of human-AI collaboration may be eligible for design patent protection.⁶

On February 14, 2024, the USPTO published new guidance on the patentability of inventions, including designs, generated with the help of AI. Importantly, the USPTO stated that when a human makes a “significant contribution” to an AI-generated design, the human can be considered an “inventor” and the design will be eligible for design patent protection.⁷

Just what constitutes a “significant contribution” is a much trickier question. The USPTO indicated that this will be considered case-by-case, and there is no bright-line rule.⁸ However, the factors for determining who is an “inventor” will be drawn from existing case law, as stated in Pannu v. Iolab Corp.: a human designer is an “inventor” if they “(1) contribute in some significant manner to the conception or reduction to practice of the invention, (2) make a contribution to the claimed invention that is not insignificant in quality, when that contribution is measured against the dimension of the full invention, and (3) do more than merely explain to the real inventors well-known concepts and/or the current state of the art.”⁹

The USPTO presented several guiding principles for applying these standards to a joint human-AI invention. First, a designer is unlikely to become an “inventor” by merely identifying or selecting an AI-generated design. If the designer selects a design and adds their own “significant contribution,” however, the designer should be able to obtain design patent protection.¹⁰ Second, a person who “designs, builds or trains an AI system” to solve a specific problem, such as may involve use of a specifically-curated set of training data, may be an inventor for all designs generated by that system.¹¹ Finally, while a person might not become an inventor merely by seeking output from an AI system, “a significant contribution could be shown by the way the person constructs the prompt in view of a specific problem to elicit a particular solution from the AI system.”¹²

Recommendations and best practices

While the USPTO guidance clarifies that some human-AI collaborations can result in patentable designs, the guidance does not provide a bright-line rule. However, some general recommendations naturally flow from the guidance.

When AI is merely used as a tool to help support the design process, resulting designs are likely to be eligible for design patent protection. In contrast, when AI is used to perform the entire design process, resulting designs not eligible for design patents, or other forms of intellectual property protection, under the USPTO’s guidance. With this in mind, designers who seek design patent protection should limit AI prompts to solving specific problems, and avoid prompting for a fully-formed design.

To help ensure designs will be eligible for design patent protection, designers who use AI tools should carefully document their design processes, including specifically identifying which elements were generated by AI and which were human-generated, and carefully documenting any uses of human creativity. Designers should also document the input and training provided to the AI to generate these elements. This documentation provides proof that there is a human “inventor,” rendering the design eligible for a design patent, and may also be necessary for certain USPTO disclosures, as inventors must disclose certain uses of AI to the USPTO before obtaining (and potentially subsequently validating) design patent protection.¹³

Finally, to the extent that companies have the resources and ability to build an internal AI, an internal AI may represent a best-case scenario for businesses. Because the designers of the AI system can be listed as inventors for designs generated by their AI, all designs flowing from an internal AI can become eligible for design patent protection. At the same time, the company can reap the benefits of using AI to generate full designs.

Authored by Jason Lohr and Cheryl Milevsky.

References

1 Maghan McDowell, How Fashion is Using Generative AI In-House, Vogue Business (Mar. 25, 2024, 2:29 p.m.) https://www.voguebusiness.com/technology/how-fashion-is-using-generative-ai-in-house

2 Id.

3 Id.

4 Nyima Jobe, How AI is ‘Amplifying Creativity’ in the Fashion World, Guardian (Mar. 25, 2024, 3:22 p.m.) https://www.theguardian.com/fashion/2024/feb/08/ai-london-fashion-week#:~:text=Brands%20such%20as%20Heliot%20Emil,visualising%20different%20materials%20and%20patterns

5 Marek Bartek, Heliot Emil’s Latest Collection Bridges Human and Artificial Creativity, Numero Netherlands (Mar. 25, 2024, 3:50 p.m.) https://www.numeromag.nl/heliot-emils-latest-collection-bridges-human-and-artificial-creativity/

6 Inventorship Guidance for AI-Assisted Inventions, 89 FR 10043 (Feb. 13, 2024) (“While AI systems and other non-natural persons cannot be listed as inventors on patent applications or patents, the use of an AI system by a natural person(s) does not preclude a natural person(s) from qualifying as an inventor (or joint inventors) if the natural person(s) significantly contributed to the claimed invention”; “The Federal Circuit has interpreted 35 U.S.C. 171 such that the inventorship inquiry is the same for a design patent and a utility patent. Therefore, this guidance regarding AI-assisted inventions applies not only to utility patents and patent applications but also to design and plant patents and patent applications.”).

7 Id. (“In the context of AI-assisted inventions, natural person(s) who create an invention using an AI system, or any other advanced system, must contribute significantly to the invention, as specified by the Pannu factors”).

8 Id.

9 Id., quoting Pannu v. Iolab Corp., 155 F.3d 1344, 1351 (Fed. Cir. 1998).

10 Id. (“Therefore, a natural person who merely recognizes and appreciates the output of an AI system as an invention, particularly when the properties and utility of the output are apparent to those of ordinary skill, is not necessarily an inventor. However, a person who takes the output of an AI system and makes a significant contribution to the output to create an invention may be a proper inventor. Alternatively, in certain situations, a person who conducts a successful experiment using the AI system's output could demonstrate that the person provided a significant contribution to the invention even if that person is unable to establish conception until the invention has been reduced to practice.”)

11 Id. (“In some situations, the natural person(s) who designs, builds, or trains an AI system in view of a specific problem to elicit a particular solution could be an inventor, where the designing, building, or training of the AI system is a significant contribution to the invention created with the AI system”).

12 Id. (“Merely recognizing a problem or having a general goal or research plan to pursue does not rise to the level of conception. A natural person who only presents a problem to an AI system may not be a proper inventor or joint inventor of an invention identified from the output of the AI system. However, a significant contribution could be shown by the way the person constructs the prompt in view of a specific problem to elicit a particular solution from the AI system”).

13 Inventorship Guidance for AI-Assisted Inventions, 89 FR 10043 (Feb. 13, 2024) (discussing that IDS should disclose AI contributions to the extent they call human inventorship into question).