Posts Tagged: "AI"

In response to articles on implementing AI into our patent system, and specifically to the suggestion that we should consider developing AI to replace some aspects of human decision making in the patent space, we have received a number of comments and even objections to the idea. A common objection: it is likely impossible and impractical for us to advance AI to the point where it can make reliable subjective decisions (e.g., infringement and obviousness), let alone reliably replace human decision making. At the outset, we challenge the presumption of this argument.  

Twenty years ago, the U.S. Supreme Court ruled for the first time that plants could be protected with utility patents. J.E.M. Ag Supply, Inc., v. Pioneer Hi-Bred International, Inc. 534 U.S. 124 (2001). Forty-one years ago, the U.S. Supreme Court ruled for the first time that living organisms were patentable. Diamond v. Chakrabarty, 447 U.S. 303 (19080). Before these landmark cases, plants and living matter were not protectable with patents. The rationale of the Supreme Court in J.E.M. and Chakrabarty supports patent protection for inventions by non-humans, i.e., artificial intelligence inventors.

South Africa’s patent office has granted the first patent for an invention conceived by an artificial intelligence (AI) inventor, DABUS. The country does not have a substantive patent examination system, and thus the significance of the grant may not be as great as it would be in other jurisdictions—but the DABUS team is celebrating. The patent is for “a food container based on fractal geometry,” and was accepted by South Africa’s Companies and Intellectual Property Commission on June 24. The notice of issuance was published in the July 2021 Patent Journal.   

Artificial intelligence (AI) is everywhere, touching nearly every aspect of our daily lives, including how we work, communicate, shop, travel and more. The term “AI” is generally understood to encompass computerized systems that perform tasks ordinarily perceived as requiring some form of human intelligence. Many AI-based systems are able to recognize trends, patterns and connections, test hypotheses using available data sets, and continuously improve decision trees based on user input. As such, AI has been shown to have near endless applications, driving a surge of inventions and related patent application filings.

One of the major challenges when licensing, transacting, or managing Standard Essential Patents (SEPs) is that there is no public database that provides information about verified SEPs. Standard-setting organizations (SSOs) such as ETSI (4G / 5G), IEEE (Wi-Fi), or ITUT (HEVC/VVC) maintain databases of so-called self-declared patents to document the fair, reasonable and non-discriminatory (FRAND) obligation. However, SSOs do not determine whether any of the declared patents are essential, nor are the declarants required to provide any proof or updates. As a result, in the course of licensing negotiations, patent acquisitions, or litigation, the question about which patents are essential and which are not is one of the most debated when negotiating SEP portfolio value, royalties, or infringement claims. Artificial Intelligence (AI) solutions have started to support the process of understanding how patent claims relate to standards to assess larger SEP portfolios without spending weeks and months and significant dollars on manual reviews by technical subject matter experts and counsel.

In response to our recent article on artificial intelligence (AI) reducing transactional costs to help determine infringement and invalidity determinations, a commenter made an interesting counterpoint, paraphrased as the following: AI provides useful tools that should be used as an aid to human thinkers, not as a replacement to human thinking. Moreover, when it comes to AI making subjective determinations, such as obviousness or novelty, we should be skeptical of relying on AI, either legally or practically. We appreciate the counterpoint and we wanted to address it in this follow-up article.

The National Security Commission on Artificial Intelligence (NSCAI) recently issued its Final Report outlining a strategy for the United States to “win” the artificial intelligence (AI) era. Critically, the Commission argues that the United States government is not currently organizing or investing to win the technology competition in AI against a committed competitor (i.e., China), nor is it prepared to defend against AI-enabled threats and rapidly adopt AI applications for national security purposes. In addition to the potential patent-eligibility and data ownership IP issues noted in the Report, other IP uncertainties unique to AI technology continue to persist, such as machine authorship and machine inventorship of valuable contributions. As part of the United States’ overall strategic interests in winning the AI era, the Commission recommends that the United States adopt IP policies to incentivize, expand, and protect AI and emerging technologies, as well as recognize IP as a national priority. But significant questions remain as to whether U.S. courts will reliably permit IP holders to proceed with AI-focused IP infringement claims against potential offenders, or if patent-eligibility, inventorship, fair use, and other defenses will tip the scales towards trade secret protection.

A common refrain is that an invention is only as valuable as the patent that protects it. But what happens when you cannot secure the patent? This is a frequent hurdle for inventors seeking to patent products utilizing artificial intelligence (AI). While still in its infancy, at least compared to the lofty expectations of technology enthusiasts, AI has proven integral to driving innovation, but it has also proven equally vexing to fit into the intellectual property legal regime.

Patent systems around the globe offer a quid pro quo that exchanges limited monopolies for disclosures of inventions. Most patent filings list: (1) the inventor(s); and (2) the applicant. The applicant may be an assignee (e.g., company, university, organization, etc.) with rights to seek patent protection on innovations that were identified during employment and that were within a scope of employment. Frequently, the assignee is a current or former employer of the inventor(s). In some jurisdictions (e.g., in the United States), the inventor(s) hold the rights to prosecute the patent application and assert any resulting patent unless and until the inventor(s) assign those rights to another entity (which is frequently done in employment and work?for?hire contracts). In some jurisdictions (e.g., the European Union), it is presumed that the party that applied for a patent holds the rights to the patent application. Thus, it is well-established that non-human entities may be the applicant, assignee, and/or owner of a patent. However, it is not well-established that a non-human entity may be an inventor on a patent applicant. Multiple patent offices (e.g., USPTO, UKIPO, and WIPO) have been considering what the standard in this respect should be.

Reports surfaced last week that Microsoft was granted a patent in December for a way to allow people to have conversations with loved ones after they’re deceased. The tech company a tool that could make it possible to have a virtual conversation via a chatbot with a “past or present entity … such as a friend, a relative, an acquaintance, a celebrity, a fictional character, a historical figure.” Further, the patent indicates that the chat would use imagery to “mold a personality alongside a 3D model of its real-life counterpart using letters and images.”

The United States has a clear need for patent reform, but does our legislature understand how to implement that reform? For decades, a shortcoming to our approach to patent reform has been misidentifying the problem as “patent trolls” (more generally, bad actors). Based on a misidentified problem, we have implemented a decades-long policy to systematically weaken patent rights, in an attempt to deter this archetypal bad actor. If we instead use economic principles to address patent reform, we would understand the root problem to our patent system—exorbitantly bloated transactional costs.

Artificial intelligence (AI) is a rapidly growing sector of the life sciences industry, with broad-ranging applications in drug discovery, biotechnology, medical diagnosis, clinical trials, precision and personalized medicine and patient monitoring. The recent uptick of AI use in this industry is likely due to the increasing availability of “big data.” AI technologies including machine learning, deep learning, and natural language processing can be harnessed to process vast data sets to identify new drug candidates, optimize drug dosing, match patients with drug trials and diagnose diseases. Recognizing this potential, global biopharma companies have invested heavily in AI technology—the AI in life sciences market was valued at USD 1092.44 million in 2019 and is expected to reach USD 3445.60 million by 2025.

The World Intellectual Property Organization (WIPO) launched their INSPIRE (Index of Specialized Patent Information Reports) “database of databases” on November 4, 2020. It provides useful summaries of patent databases to help both novice and expert patent searchers identify the most suitable search system. WIPO’s ultimate goal was to speed up the pace at which innovation takes place. To do this, INSPIRE identifies database features without commenting on any strengths or weaknesses of products. At the time of writing, INSPIRE listed 23 databases, both free and subscription. Content was still being added to the collection and there was scope for more sources to be included.

On October 27, the United States Patent and Trademark Office (USPTO) released a report titled “Inventing AI: Tracing the diffusion of artificial intelligence with U.S. patents.” The study showed that artificial intelligence (AI) patent applications increased by more than 100% between 2002 and 2018, from 30,000 to over 60,000, and the overall share of patent applications containing AI subject matter rose from 9% to nearly 16%.

As computing power and large datasets become more available, the use of artificial intelligence (AI) in technology is exploding around the world. As an indicator of the impact of AI, private equity investment in AI start-ups attracted 12% of worldwide private equity investments in the first half of 2018, reflecting a four-fold increase from just 3% in 2011, across all major economies. In the United States, the U.S. Patent and Trademark Office (USPTO) has taken steps to adapt to AI inventions, asking in August of 2019 for public comment on questions ranging from AI inventorship to how to best consider AI elements of inventions. The World Intellectual Property Organization (WIPO) has also asked similar questions, as part of its conversation on intellectual property (IP) and AI, which published its first Draft Issues Paper on IP policy and AI in December of 2019 and is continuing to hold meetings on the topic.