SMU Law Review

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Artificial intelligence (AI) has helped determine vaccine recipients, prioritize emergency room admissions, and ascertain individual hires, sometimes doing so inequitably. As we emerge from the Pandemic, technological progress and efficiency demands continue to press all areas of the law, including intellectual property (IP) law, toward incorporating more AI into legal practice. This may be good when AI promotes economic and social justice in the IP system. However, AI may amplify inequity as biased developers create biased algorithms with biased inputs or rely on biased proxies. This Article argues that policymakers need to take a thoughtful and concerted approach to graft AI into IP law and practice if social justice principles of access, inclusion, and empowerment flow from their union. It explores what it looks like to obtain AI justice in the IP context and focuses on two areas where IP law impedes equitable AI-related outcomes. The first involves the civil rights concerns that stem from trade secrets blocking access and deflecting accountability in biased algorithms or data. The second concerns the patent and copyright doctrine biases perpetuating historical inequity in AI-augmented processes. The Article also ad- dresses how equity by design should look and provides a roadmap for implementing equity audits to mitigate bias. Finally, it briefly examines how AI would assist with adjudicating equitable IP law doctrines, which also tests the outer limits of what bounded AI processes can do.

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