Posts in Technology & Innovation

The U.S. Chamber of Commerce today announced it is partnering with entrepreneurs and other business advocates to counter threats to innovation due to “excessive government overreach,” including the Biden Administration’s proposed framework to expand the use of so-called patent march-in rights.

On March 13, the European Parliament approved the Artificial Intelligence (AI) Act, a major piece of legislation that lays the legal foundation of the European Union’s (EU) regulation of AI platforms. While the 459-page bill addresses some of the copyright and other intellectual property (IP) issues related to generative AI, European creator groups have called upon the EU’s parliamentary body to create more meaningful mechanisms for IP rightsholders to prevent their works from being incorporated into AI platform training models. Further, questions have been raised regarding the extraterritorial impact of reporting requirements and how they might implicate the development of copyright law in foreign jurisdictions.

The U.S. Patent and Trademark Office (USPTO) today issued a Request for Comments (RFC) that will be published in the Federal Register tomorrow seeking input from the public on how to better incentivize commercialization of innovation, particularly in green and critical or emerging technologies. According to the RFC, the comments received “will be used to evaluate possibilities for amplifying the impact of our current work, and to explore new ways to support the transfer of innovation to the marketplace.”

Artificial Intelligence (AI) stands at the forefront of innovation, transforming industries and shaping the future of global economies. Although AI innovators understand the value of intellectual property (IP) protection for their innovations, they often don’t know how to secure the right kind of IP protection for their innovations. Employing a process for systematically mining AI innovations to create a map of those innovations is one option for identifying the most suitable form(s) of IP protection to obtain, based on the innovation and the business model within which that innovation will be commercially deployed.

In an opposition brief filed Monday, The New York Times Company (The Times) told a New York district court that OpenAI’s late February claim that The Times “paid someone to hack OpenAI’s products” in order to prove OpenAI infringed its copyrights amounts to little more than “grandstanding.” In late December 2023, the Times became the latest of many complainants to accuse OpenAI’s Large Language Model, ChatGPT, as well as Microsoft’s GPT-4-powered Bing Chat, of widespread copyright infringement. The Times alleged that Microsoft and OpenAI reproduce Times content verbatim and also often attribute false information to the Times. The Times’ opposition brief filed yesterday responds to OpenAI’s recent motion to dismiss, which alleged that The Times paid someone to target and exploit “a bug (which OpenAI has committed to addressing) by using deceptive prompts that blatantly violate OpenAI’s terms of use.”

The U.S. Patent and Trademark Office (USPTO) announced Monday that it has created an Office of Public Engagement (OPE) “to advance the agency’s mission of increasing participation in the innovation ecosystem by strengthening outreach and support to American communities.” The OPE will be on par with the Patents and Trademarks units and will consolidate a number of existing offices into one, including the four USPTO Regional Offices.

As of today, the world’s major platforms—Apple, Alphabet, Meta, Amazon, Microsoft and ByteDance—must be in full compliance with the European Union’s Digital Markets Act (DMA), an EU regulation intended to level the playing field in the digital marketplace. Signed into law in September 2022, the DMA imposed a complex regulatory framework upon the major Internet services platforms that are deemed to be “gatekeepers” (i.e. have a market capitalization of at least €75 billion [$83 billion USD]) due to their dominant market position. These gatekeepers each market at least one “core platform service” (CPS) that connects large numbers of users and business interests.

Panelists on day one of IPWatchdog’s Artificial Intelligence Masters 2024 program painted a sometimes-grim picture of the current state of generative AI (GAI) tools and the ways in which they are being deployed in the United States, but seemed convinced overall that the kinks would be worked out once lawmakers and courts catch up, as they have done with past disruptive technologies.

As an update to my previous posts from 2017, 2019, 2020, March 2021, August 2021, 2022, and 2023, it has now been almost a decade since the U.S. Supreme Court’s 2014 Alice Corp. v. CLS Bank decision. Yet the debate still rages over when a software (or computer-implemented) claim is patentable versus being simply an abstract idea “free to all men and reserved exclusively to none” (as eloquently phrased 76 years ago by then-Supreme Court Justice Douglas in Funk Bros. Seed Co. v. Kalo Inoculant Co.).

On February 20, 2024, a Brazilian congress member, Antônio Luiz Rodrigues Mano Júnior (known as Júnior Mano), introduced a bill to amend the national IP Statute (Law #9,279/96) and regulate the ownership of inventions generated by artificial intelligence systems. Bill #303/2024 proposes the addition of a paragraph to Article 6 of the IP Statute, which regulates ownership of inventions, with the following wording: “in the case of inventions autonomously generated by artificial intelligence system, the patent can be requested in the name of the artificial intelligence system that has created the invention, being the artificial intelligence system considered the inventor and owner of rights arising from the invention.”

ChatGPT and similar generative artificial intelligence (AI) tools rely on large language models (LLMs). LLMs are fed massive amounts of content, such as text, music, photographs and film, which they analyze to discover statistical relationships among these inputs. This process, describe as “training” the LLMs, gives them the ability to generate similar content and to answer questions with seeming authority. The business community, and society at large, seems convinced that AI powered by LLMs holds great promise for increases in efficiency. But multiple lawsuits alleging copyright infringement could create a drag on development of LLMs, or worse, tip the competitive balance towards offshore enterprises that enjoy the benefits of legislation authorizing text and data mining. A lot seems to hang on the question of whether LLM training involves copyright infringement or instead is a fair use of copyrighted content.

On February 22, the U.S. Chamber of Commerce’s Global Innovation Policy Center (GIPC) released the 2024 International IP Index, which provides an annual snapshot of the impact of legal developments in intellectual property (IP) on the innovation ecosystem in dozens of nations across the world. While this 12th version of the GIPC’s index noted some positive developments in national IP frameworks, stagnation among the recurring leaders of the IP Index is a major concern given growing efforts by governments to control prices in critical sectors of the economy, especially in pharmaceuticals.

A bipartisan group of 28 members of congress, including Senate IP Subcommittee Chair Chris Coons (D-DE), Ranking Member Thom Tillis (R-NC) and House IP Subcommittee Chair Darrell Issa (R-CA), sent a letter yesterday to President Biden urging the administration to reconsider its December proposal to allow agencies to consider pricing in deciding whether and when to “march in” on patent rights. Also yesterday, four bipartisan senators wrote to National Security Advisor Jake Sullivan in opposition to the negotiating text of the World Health Organization (WHO) Pandemic Agreement, warning that it “would undercut—if not destroy—the very aspects of our innovation ecosystem that just recently produced such positive results.”

As artificial intelligence (AI) systems become increasingly sophisticated and play a greater role in our society, questions surrounding patentability and inventorship have come to the forefront of intellectual property discourse. This is particularly so in the wake of Thaler v. Vidal, 43 F. 4th 1207, 1213 (Fed. Cir. 2022), cert denied, 143 S. Ct. 1783 (2023), in which the Federal Circuit held that “only a natural person can be an inventor, so AI cannot be.” The U.S. Patent and Trademark Office (USPTO) recently issued guidance aimed at addressing these concerns.

In an ideal world, issued patents would not contain errors. In reality, patent drafting is tedious and time-consuming work and perfection is not an attainable goal. The patent industry seems to be steadily getting better, though. In a recent study, we uncovered an 11.24% decrease in errors per patent over the past four years. We observed this decrease by reviewing every patent issued by the U.S. Patent and Trademark Office (USPTO) since 2020 – nearly 1.4 million patents.