Posts in Inventors Information

Accelerated Innovation: In Less Than a Year, We’ve Seen a Decade’s Worth of AI and IP Developments

The past year has provided decades’ worth of developments across law and policy in the areas of artificial intelligence (AI) and machine learning (ML) technologies. If 2022 was the breakthrough year for accessible AI, then 2023 can so far be deemed as the first year of likely many more to come in the era of an AI inquisition. “After years of somewhat academic discourse,” reflects Dr. Ryan Abbott, “AI and copyright law have finally burst into the public consciousness—from contributing to the writer’s strike to a wave of high-profile cases alleging copyright infringement from machine learning to global public hearings on the protectability of AI-generated works.” Both the U.S. Copyright Office (USCO) and the U.S. Patent and Trademark Office (USPTO) are in active litigation over the eligibility of generative AI outputs for statutory protection. Additionally, both offices have held numerous webinars and listening sessions and conducted other methods of collecting feedback from the public as they work through policy considerations surrounding AI.

PTAB Developments in 2023: A Mid-Year Recap and What’s to Come

A little over halfway through 2023, and nearing the end of the Patent Trial and Appeal Board’s (PTAB’s) fiscal year, we can take stock of an administrative body that is settling into a decade of precedent while big changes still loom. Unlike prior years, where policy changes resulted in statistical swings for institution rates, outcomes, amendment practice, and the like, this year has been more of an extension of previous trends (though institution rates are still creeping higher).

The Patent Eligibility Absurdity Continues

Recently, it has come to my attention that a system that utilizes a camera to capture images and software to run facial recognition is being rejected by the United States Patent and Trademark Office (USPTO) as an abstract idea. Why? Well, it unfortunately seems that the reason is simply because the purpose of this very tangible, working system is to identify people and charge them a fare. Because money is overtly involved, for reasons that make no rational sense, this is being deemed a business method, despite the facial recognition technology—and even though this is a clean, streamlined approach for conducting commerce.

The PREVAIL Act Won’t Work Unless PTAB Incentives are Balanced

The PREVAIL Act addresses current rules that enable gamesmanship at the Patent Trial and Appeal Board (PTAB) by huge corporations against small inventors, startups and other patent owners, and that increase invalidation rates. It introduces standing requirements, establishes a clear and convincing evidence standard to invalidate a patent, ensures a code of conduct is put in place for administrative patent judges (APJs), and more. While these changes are well-intended, due to the PTAB’s perverse incentive structure, the PREVAIL Act will only be marginally effective, and may have no real effect at all.

Judge Rader Says PREVAIL Act Will Bring Much-Needed Balance to PTAB Proceedings

On August 2, inventor advocacy group US Inventor held a webinar on provisions of the Promoting and Respecting Economically Vital American Innovation Leadership (PREVAIL) Act that are intended to curb abuses impacting small business patent owners at the Patent Trial and Appeal Board (PTAB). While most panelists on the virtual call acknowledged that the PREVAIL Act wouldn’t solve every problem threatening the U.S. innovation ecosystem’s most vulnerable members, there was widespread agreement that the bill would have beneficial impacts if enacted. The webinar was US Inventor’s second on the PREVAIL Act following a virtual call last week with law professor Adam Mossoff and C4IP General Counsel Jamie Simpson.

Inventor and User Organizations Tell SCOTUS to ‘Confine’ Chevron So USPTO Can’t Escape Rulemaking Process

One of the many amici who have filed briefs in a Supreme Court case asking the Court to overrule its precedent in Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc. told the justices last week that the United States Patent and Trademark Office (USPTO) is abusing the so-called Chevron doctrine “to bypass the procedures that ensure that the agency considers the public interest.” The “Chevron doctrine” says courts should defer to administrative agencies’ interpretation of the statutes delegated to them. In the 1984 ruling in Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., the Supreme Court held that a court “may not substitute its own construction of a statutory provision for a reasonable interpretation made by [the agency charged with administering the statute],” where the statute is ambiguous.

Court of Federal Claims Dismisses Psychological Damage Claims Filed Against USPTO

On July 25, the U.S. Court of Federal Claims (CFC) issued a ruling in Pulnikova v. U.S. dismissing monetary damages claims for alleged violations of 42 U.S.C. § 1983 by patent examiners and officials at the U.S. Patent and Trademark Office (USPTO). Although the CFC expressed its sympathy for the inventor’s frustrations, including the pro se filing of “appeal-books” containing thousands of pages responding to office actions, the court added that it lacked subject matter jurisdiction to award the type of damages sought.

The PTAB: China’s Silent but Deadly Weapon in Its Economic War Against America

Of the many ways that the Patent Trial and Appeal Board (PTAB) works to the detriment of the U.S. innovation economy, one of the most nefarious is the Chinese government’s use of patent validity review to advance its national interests. Recent briefing filed at the PTAB suggests that the Board is quietly helping China win the war for technological supremacy during the 21st century, mainly by destroying the economic interests of American small businesses innovating in industrial sectors critical to American national security.

Finding the Trolls: My Mission to Understand Why We Need the PTAB

I was told that elected officials count on—in fact, they need—constituent input to be effective legislators. After my patents were unjustly cancelled at the Patent Trial and Appeal Board (PTAB), I started the journey to do this very thing. Since January of 2022, I have visited Congress and the Senate two dozen times. I have visited over 200 offices telling my story and advocating for the “little” inventors, like me.

Amicus Brief in Killian SCOTUS Case Urges Textualist Interpretation of Section 101

On July 17, inventor advocacy organization US Inventor and conservative interest group Eagle Forum Education and Legal Defense Fund filed a joint amicus brief at the U.S. Supreme Court urging the nation’s highest court to grant the petition for writ of certiorari filed in Killian v. Vidal. US Inventor and Eagle Forum ELDF’s brief is the latest call upon SCOTUS to address the “dire consequences” flowing from the dramatic expansion to judicial exceptions to patent eligibility under 35 U.S.C. § 101.

Using AI to Give Inventors a Leg Up on Big Tech

In April, the United States Patent and Trademark Office (USPTO) requested public input on an Advance Notice of Proposed Rulemaking (ANPRM). The Request for Comments (RFC) allowed the public to voice their opinion on the proposed rules, including hundreds of real, authentic inventors. In the past, US Inventor has asked its members to use their voices and write comments for the USPTO’s requests. Typically, these requests generate at least 100 responses from USI’s members. This time, USI decided to level the playing field and give its members a chance to speak as loudly as its adversaries. We generated nearly 2,400 real comments from inventors, patent holders and concerned individuals. 

Patent Experts Sound Off on New Bills to Fix Eligibility and the PTAB

Last week was a big one for the potential future of the U.S. patent system. The deadline for comments on the U.S. Patent and Trademark Office’s (USPTO’s) Advance Notice of Proposed Rulemaking (ANPRM) on “Discretionary Institution Practices, Petition Word-Count Limits, and Settlement Practices for America Invents Act Trial Proceedings before the Patent Trial and Appeal Board [PTAB]” was Tuesday, June 20…. Then, on Thursday, Senators Thom Tillis (R-NC), Chris Coons (D-DE), with some help from their colleagues, introduced two new bills that would have major implications for patent eligibility law and PTAB practices, respectively. Below are some other perspectives from a range of IP stakeholders.

Defining Data: Improving Terminology Around Generative AI Models

The generative artificial intelligence (AI) revolution the world is currently experiencing is powered by data. But what exactly are “data” and how can we make the term fit for use in the complex landscape of generative AI? In simple terms, data in this context can be any digitally formatted information. However, there is an inconsistency in the usage and understanding of the term when it comes to what is encompassed in a dataset used for training a generative AI model. Often, there is metadata or even identifiable information which, although possibly unintended, ends up being part of the training data. There can also be legal implications linked to the data, including systems trained on copyrighted or licensed works, or, for example, systems trained with any visual or textual information containing personal health information.

Compelling Merits Standard Features in Many of Nearly 14,000 Comments Filed in PTAB Practices ANPRM

As of the morning of June 20, which was the deadline for public comment on the U.S. Patent and Trademark Office’s (USPTO’s) advanced notice of proposed rulemaking (ANPRM) on Patent Trial and Appeal Board (PTAB) practices, the agency had received nearly 14,000 comments. On either side of the debate, the USPTO’s proposed “compelling merits” standard for circumventing Fintiv discretionary denials generated a great deal of feedback. The following comments from well-known thought leaders and companies encapsulate many of the issues that the USPTO must navigate as it contemplates changes to PTAB practices.

Inventors Tell USPTO to Let Small Entities Off PTAB’s Hook

With the comment period set to close on June 20, more than 11,000 comments had been filed as of Friday, June 16, in response to the U.S. Patent and Trademark Office’s (USPTO’s) Advanced Notice of Proposed Rulemaking (ANPRM) on Patent Trial and Appeal Board (PTAB) practices. Only 265 of those had been posted as of Friday, however. The ANPRM was…