Posts Tagged: "AI"

The Supreme Court’s 2014 decision in Alice v. CLS Bank made it significantly more difficult to obtain patents for some computer-related technologies. it is, at best, questionable whether court decisions since then have been coherent and consistent. Similarly, marked variation has been observed across art units and across post-Alice time periods as to how examiners are applying Section 101. However, the U.S. Patent and Trademark Office’s (USPTO’s) 2019 Patent Eligibility Guidance added some much-needed clarity and predictability as to how eligibility of computer-related patent applications is being assessed at the agency. Our previous research focused on the effect that Alice and Electric Power Group had on examination trends in computer-related art units. To investigate how the new 2019 USPTO eligibility guidance has affected those trends, we updated our analysis.

Recently a group out of the University of Surrey provided a new challenge to the definition of inventor, asking “who what may be an inventor on a patent?” The group has created an artificial intelligence (AI) named DABUS. Using a first system of networks to generate new ideas, and second system of networks to determine consequences, DABUS invented a beverage container and a flashing device used for search and rescue that are the subjects of patent applications filed in the United States and Europe.

This week on Capitol Hill, the Senate IP Subcommittee will hold its third and final hearing on patent eligibility issues that currently exist in the U.S. patent system. Elsewhere in the Senate, hearings will focus on privacy issues posed by data brokers as well as Federal Communications Commission oversight. Hearings over at the House of Representatives will discuss topics including NASA’s science mission, sexual harassment issues within the scientific professions, and research leading towards increased use of renewable energy sources. The Information Technology and Innovation Foundation will also host an event to explore new tax models affecting U.S.-based Internet services companies.

This week, both houses of Congress sit silent during scheduled work periods, although the House Infrastructure Subcommittee will host a hearing on rural broadband Internet access in Minnesota. Back in Washington, D.C., tech and innovation think tanks kick off the week with an event on bridging the STEM education gap hosted by the Consortium for Science, Policy and Outcomes. Later in the week, the American Enterprise Institute explores issues in promoting security in 5G networks, the Information Technology and Innovation Foundation meets at the NIST headquarters in Gaithersburg to discuss standards setting for artificial intelligence tech, and the Brookings Institution focuses on the CIA’s efforts to police online channels to identify threats while balancing those activities with Americans’ civil liberties.

Artificial intelligence (AI) has become a hot topic in both the tech and political spheres. This technology holds huge widespread potential, and strategic use of AI may well be a source of commercial and/or political power. For example, potential uses of AI may range from facilitating targeted and efficient drug development to controlling traffic lights (and thus reducing pollution and commute times), to developing life-like online personas. With all of the media attention that AI is receiving and with its widespread potential uses, how is a company to decide how fervently to pursue patents in this area and to weight their patent portfolios across different types of AI innovations?

This is the first in a thirteen-part series of articles authored by Kilpatrick Townsend that IPWatchdog will be publishing over the coming weeks. The series will examine industry-specific patent trends across 12 key patent-intensive industries. Companies are frequently faced with high- and low-level decisions concerning patenting. What should an annual patent budget be and/or how many new applications should be filed each year? Which technologies should be emphasized in the portfolio? For a given innovation, should a patent application even be filed? These questions are frequently evaluated by looking at internal factors, such as recent enterprise-wide profitability, executive sentiments towards patenting, and/or the perceived importance of individual projects. However, the effect of a patent is to exclude others from a given innovation space. If no other entity was or would be interested in making, using, selling, or importing a patented invention, one could argue that the patent was valueless. Conversely, if many others are actively developing technology within a space, a patent portfolio in that area may be particularly valuable. Thus, patenting decisions should factor in the degree to which others have interest in a given technology is trending-up or -down. Patenting data can serve as one indicator for this type of interest. However, it is difficult to collect patenting data at an industry level. While the patent office assigns an art unit and a class to each patent application, using one or more art units and/or classes as a proxy for an industry is both under- and over-inclusive. For example, a patent application related to an Internet of Things (IoT) industry may also relate to traffic lights, such that, even if there were art units specifically and only associated with either IoT or traffic lights (which there is not), statistics would be inaccurate: statistics pertaining only to an IoT art unit would not account for data corresponding to applications and assigned to the hypothetical traffic-light art unit, while statistics pertaining to both art units would be based on non-IoT applications assigned to the latter art unit.

Capitol Hill remains quiet this week as both the U.S. House of Representatives and Senate enter a second straight week of work periods. Technology and innovation events continue, however, at the many policy think tanks residing in Washington, D.C. Monday starts with a discussion on U.S.-China relations at the Brookings Institution, while a pair of events at the Cato Institute look at whether human ingenuity can improve resource availability in the face of a growing world population and the effects of artificial intelligence (AI) on the future of work. In the middle of the week, the Center for Strategic and International Studies hosts two events exploring threats to the government’s software supply chain, as well as counterspace threats faced by the U.S. The week wraps up on Friday with a Consortium for Science, Policy and Outcomes event that explores the positive effect that creative play can have on business innovation.

It is safe to say that Artificial intelligence (AI) and Machine Learning (ML) are hot topics and, as with any rapidly growing technological area on the industry side, there is also a rapidly growing number of patent applications being filed.In view of this, the European Patent Office (EPO) issued new guidance for examination for AI and ML patent applications in November 2018. Meanwhile, in January 2019, the U.S. Patent and Trademark Office (USPTO) also issued revised guidance directed to what constitutes patent eligible subject matter under 35 U.S.C. §101. Although the USPTO’s revised guidance is more generally directed to software applications, at least one of the accompanying hypothetical examples (Example 39) is directed to the AI and ML space. Therefore, while there may be lingering concerns that AI and ML inventions will face extra scrutiny toward patentability due to their software-centric nature, the extra attention that the EPO and USPTO are paying toward AI and ML will likely help swing the pendulum of patentable subject matter toward a place that is in harmony with the current state of technology. The below analysis reviews the recent developments by the EPO and the USPTO to provide specific guidance on the topic of AI and ML.

Deepfake technology has made headlines recently for its use in creating fake portrayals of celebrities, but the long term implications could be much more sinister than phony renderings of Scarlett Johansson appearing in porn videos or President Barack Obama calling Trump a profanity. While the California bill is chiefly aimed at criminalizing this particular type of technological deception, it has implications for IP in that it reaches conduct that may not be easily addressed by the enforcement of existing IP law.

Artificial Intelligence (AI) patents have made a strong comeback under the new 2019 Revised Patent Subject Matter Eligibility Guidance. As the first graph above shows, allowances per office action have gone from an average of 15% before the guidance to 38% after the guidance. The increase occurred almost immediately after examiners were trained on the new guidance in January. For AI inventors concerned about the impact of the old Alice guidelines on the examination of AI-related applications, it looks like more hopeful times are ahead. The situation is grimmer for finance patents. The new guidance has not had any significant effect on allowances per office action. I reviewed a number of recent office actions under the new guidelines to see where the problem might be. It appears that most examiners in the finance art units 3691 to 3697 consider any improvement to a computer implemented financial process to be nothing more than an abstract idea. It doesn’t matter how novel or sophisticated the algorithms might be. The Patent Trial and Appeal Board has been backing up this examiner perspective, with the affirmance rate for related appeals being more than 90%.

New technologies create novel issues and inform our understanding of existing laws. The statutes that form the basis of the U.S. IP regime are decades old and, as such, could not have contemplated how technology (and technology-assisted infringement) would evolve. As a result, traditional methods of IP enforcement often lag behind the rapidly changing online environment. Though Congress has taken steps to modernize these sometimes antiquated laws—for example, the America Invents Act made significant changes to the U.S. patent system in 2016 and the Music Modernization Act updated the music licensing and royalty framework to account for digital streaming platforms like Spotify in 2018—these updates almost always function as an ex post solution to a problem that was already present. The core questions of what is “protectable,” what is “infringement” and what is “willful” in view of the fundamental shifts in technological advancement remain squarely in the gray.

Certain innovations—known as enabling technologies—provide the foundation for progress across a range of industries. Enabling technologies include mobile wireless, the laser, CT scanners, the microprocessor, artificial intelligence, and freight containerization. Such technologies drive wealth creation throughout the economy. However, the difficulties associated with monetizing this type of IP, which I explore in this article, mean that private enterprise tends to underinvest in new enabling technologies. Public policy needs to be more supportive, and firms need to be willing to support more blue-sky projects. As a nation, we are harvesting the fruits of old enabling technologies without investing sufficiently in new ones. We are eating our seed corn.

A high ranking Chinese official has announced that the Chinese government rejected a request from the United States to end its subsidization of industries identified by the Made in China 2025 initiative. These key industry sectors are areas where technological development is very important and as such, they’ve been at the center of allegations over the forced transfer of patented technologies to Chinese domestic firms as well as outright theft of trade secrets. The Chinese government has responded to concerns over the Made in China initiative with one senior economic official defending the program as open to foreign and private companies according to a report by Hong Kong’s English daily The Standard.

Over the next few years, the most interesting intellectual property trend to watch will be what happens with new patent applications. The number of utility patent applications filed in the United States declined in 2015 (compared with 2014) and again in 2017 (compared with 2016). If the downward slide continues, will this be due to smarter filing strategies, or will it be because less emphasis is being put on patents? Will it be because more emphasis is being placed on trade secrets? Is it because of an unfavorable climate in the United States for certain types of inventions? Filings in other parts of the world are on the rise at a time when U.S. utility applications are either stagnant or in decline. Could it be because patent applicants are moving elsewhere?

In 2017, 48 percent of the world’s entire equity funding for AI startups was located in China. The U.S. was in second-place, lagging behind at 38 percent of global equity funding for AI startups. Although the U.S. still held the lead in total AI funding as well as the largest number of AI firms, this indicates that the Chinese will be a huge player in the AI sector in the coming years and could even surpass our nation’s research and development in the field.