Posts Tagged: "artificial intelligence"

USPTO Extends Deadline for AI Inventorship Comments as Some Criticize Pannu Factors

On June 6, the U.S. Patent and Trademark Office (USPTO) published a notice in the Federal Register announcing that the Office would be reopening the public comment period for the development of inventorship guidance surrounding inventions developed by artificial intelligence (AI) systems. Although the USPTO will continue to collect public comments until the middle of June, public comments received from patent industry stakeholders so far are largely urging the agency to adopt inventorship guidance that provides a broad pathway to patentability for AI-assisted inventions.

Obviousness Evolution: From PHOSITA to THOSITA to AI

The 1952 U.S. Patent Act’s section 103 takes a pass at overcoming hindsight bias by positing a hypothetical Person Having Ordinary Skills In The (relevant) Art, i.e. a PHOSITA. It took 13 years thereafter for the Supreme Court to breathe life into PHOSITA in the Graham v. John Deere, 363 U.S. 1 (1966) Trilogy, and in another 41 years it adjusted the barriers of a U.S. Court of Appeals for the Federal Circuit (CAFC) diversion of teaching, suggestion or motivation (TSM) requirements for detection of non-obviousness in KSR Int’l Co. v. Teleflex, 550, U.S. 398 (Fed. Cir. 2007).

Can Conspiracies to Better the World Be Anticompetitive?

The Federal Trade Commission (FTC) screwed up. At least that’s how it explains what it calls the “lock[ed] in exploitative business models and monopoly power” of today’s internet giants. It blames “delayed government action.” But the agency says it won’t allow the same thing to happen with artificial intelligence (AI). With AI, the FTC “plan[s] on using the full scope of [its] authority to make sure that history does not repeat itself.”       

Changes to AI Patent Practice in View of the USPTO’s Recent Actions

The United States Patent and Trademark Office (USPTO, the Office or the Agency) has recently issued multiple guidance and proposed rules that potentially change the landscape of patent practice. On top of that, the USPTO has also proposed substantial terminal disclaimer fee increases that can induce early filing of terminal disclaimers. The Agency’s actions will significantly impact patenting artificial intelligence and it is important to understand the USPTO’s position from a holistic perspective with respect to this critical emerging technology.

A Creeper: Absorbing Generative AI into the Inventive Process

The U.S. Patent and Trademark Office’s (USPTO) recent Request for Comments (RFC) on the impact of artificial intelligence (AI) highlights a critical juncture in intellectual property law—evaluating the impact of generative AI (GenAI) on the non-obviousness standard. As GenAI technologies integrate deeply with human intellect, possibly even enhancing cognitive capacities, we must reassess what constitutes “progress” and the constitutional value that intellectual property law was envisioned to advance.

The World’s AI Companies Are Killing Trust in the Technology

I was scrolling my LinkedIn feed recently and noticed a former associate had posted that they had achieved certification in “AI ethics” from one of the world’s largest technology companies. I’ve noticed this term becoming more ubiquitous lately, and it’s puzzling. Ethical according to whom? Ethical compared to what? Whose ethical code are we using to determine whether a given technology is ethical? By what standards do we measure whether an AI-generated image, song, article, thought piece, or other assets are “ethical?”

Tips for Using AI Tools After the USPTO’s Recent Guidance for Practitioners

The U.S. Patent and Trademark Office (USPTO) recently released new guidance for practitioners using artificial intelligence (AI)-based tools. The guidance primarily serves as a reminder of longstanding requirements and best practices for patent and trademark practitioners. For example, patent practitioners have a duty of candor and good faith to the USPTO and a duty of confidentiality to their clients. The guidance does not announce any new law or rule regarding practicing before the Office;  rather, it provides some insight into how the Office expects practitioners to operate when incorporating AI-based tools into their practice.

Witnesses Tell Senate IP Subcommittee They Must Get NO FAKES Act Right

The U.S. Senate Judiciary Committee’s Subcommittee on Intellectual Property met today to hear from six witnesses about a recently-proposed bill to curb unauthorized uses via artificial intelligence (AI) of an individual’s voice and likeness.   The “Nurture Originals, Foster Art, and Keep Entertainment Safe Act of 2023” (NO FAKES Act) was introduced in October 2023 by Senator and Chair of the IP Subcommittee Chris Coons (D-DE) and Senators Marsha Blackburn (R-TN), Amy Klobuchar (D-MN), and Thom Tillis (R-NC). The goal of the bill is to “protect the voice and visual likenesses of individuals from unfair use through generative artificial intelligence (GAI).”

Commerce Department Announces NIST and USPTO Actions on AI

President Biden issued an executive order (EO) on artificial intelligence on October 30, 2023,  announcing a series of agency directives for managing risks related to the use of AI technologies. Now, the Department of Commerce (DOC) has announced several new actions aimed at implementing that order. On Monday, April 29, the DOC said the National Institute of Standards and Technology (NIST) has released four draft publications on improving safety and security of AI technologies and also launched a program that will help to distinguish between content produced by humans and content produced by AI. Additionally, the U.S. Patent and Trademark Office (USPTO) today published a request for comment (RFC) on “how AI could affect evaluations of how the level of ordinary skills in the arts are made to determine if an invention is patentable under U.S. law.”

AI Tools for Patent Drafting: LLMs Will Likely Never Write Claims as Well as Humans

Like most patent attorneys, I get multiple emails each month for artificial intelligence tools purporting to help patent attorneys draft patent applications. I have done demos, and I have no doubt that in five years almost all patent drafting practitioners will be using these generative AI tools in some capacity. But I am also convinced that these tools will not be especially helpful in drafting claims.

Thaler, Copyright Office Fight Over Human-Authorship Requirement for AI-Created Artwork Continues

On April 10, Dr. Stephen Thaler filed a reply brief  at the U.S. Court of Appeals for the D.C. Circuit, continuing the artificial intelligence (AI) technologist’s legal challenge to the U.S. Copyright Office’s refusal to register copyright to an artwork generated by Thaler’s Creativity Machine. The reply brief argues that there is no human authorship requirement under the U.S. Copyright Act preventing Thaler from claiming copyright in the AI-generated work, and that standard principles of property law enables ownership of the work to vest in Thaler, who created the AI system at issue in the case.

Schiff Introduces Bill to Mandate Disclosure of Copyrighted Content Used to Train GAI Models

On April 9, Representative Adam Schiff (D-CA) introduced the Generative AI Copyright Disclosure Act of 2024 into the U.S. House of Representatives. The bill, which would require generative artificial intelligence (AI) platforms to disclose their use of copyrighted works in training AI models with retroactive effect, comes after months of growing concerns by the global creative community over the misappropriation of original works of authorship by companies collecting such content without prior authorization.

The Licensing Vector: A Fair Approach to Content Use in LLMs

A spate of recent lawsuits is shining light on how some generative AI (GenAI) companies are using copyrighted materials, without permission, as a core part of their products. Among the most recent examples is the New York Times Company’s’ lawsuit against OpenAI, which alleges a variety of copyright-related claims. For their part, some GenAI companies like OpenAI argue that there is no infringement, either because there is no “copying” of protected materials or that the copyright principle of fair use uniformly applies to generative AI activities. These arguments are deeply flawed and gloss over crucial technical and legal issues. They also divert attention from the fact that it is not only possible but practical to be pro-copyright and pro-AI.

USPTO AI Guidance Highlights Risks for Practitioners and Public

The U.S. Patent and Trademark Office (USPTO) today announced guidance for practitioners and the public regarding the use of artificial intelligence (AI) in the preparation of filings for submission to the Office. The guidance comes two months after the Office issued a guidance memorandum for the Trademark and Patent Trial and Appeal Boards (TTAB and PTAB) on the misuse of AI tools before the Boards that clarified the application of existing rules to AI submissions.

Amid Approval of EU AI Act, Creators Demand Stronger Protections for Rightsholders

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.