Outlier Patent Attorneys attended the third meeting of the Artificial Intelligence (AI) and Emerging Technologies (ET) Partnership Series held this past February 8, 2023. The conference drew experts from across the Dallas Bar Association (DBA) Intellectual Property (IP) section and the State Bar of Texas IP section to discuss the current state of AI-driven innovation, insights into how AI contributes to the invention creation process, and its resulting IP considerations.
Background of the AI/ET Partnership
The AI/ET Partnership is a recent cooperative effort between the USPTO and the AI/ET community, including academia, independent inventors, small businesses, industry, other government agencies, nonprofits, and civil society. The primary goal is to enhance the quality and efficiency of patent and trademark examination by informing and involving the community with conversations on relevant policy updates and issues.
Key Topics Discussed
AI and Inventorship
The right way to think of AI is still as a tool in an inventor's toolkit, rather than using AI to create inventions. The conference affirmed that AI, while crucial in aiding innovation, cannot itself be listed as an inventor (Reuters). The term 'inventor' is still restricted to natural persons or human beings, which excludes AI, corporations, or sovereign entities. As of current, the USPTO does not foresee the near possibility of AI itself contributing itself to a claimed invention.
How AI Impacts Patentability
Here’s an open-ended question for many patent practitioners: how does AI affect obviousness? One key point of issue is that AI affects the assessment of obviousness–a key element in patentability. Analyzing non-obviousness through the lens of a person in ordinary skill in the art using AI indicates a higher standard for patent applications. This means it is harder to get a patent, as more aspects appear obvious to a person using AI versus a non-AI user.
(Curious about what can be patented for AI/ML technologies? Read more in our in-depth article here)
(Here is a USPTO response on patenting AI inventions).
Challenges and Opportunities with AI and IP
AI-created content can sometimes pose risks of unintentionally violating the IP rights of others, especially when it comes to trademarks and copyrights. This issue typically arises with generative AI systems that focus on existing knowledge and that are trained using publicly available data.
To illustrate, consider a scenario where a company uses an AI tool to generate a new logo. The AI system, which may be trained on a wide range of public data, could create a design that unintentionally mirrors a copyrighted logo or trademark owned by another entity. Even if the company is unaware of the similarities, they may still be at risk of IP infringement in this scenario.
However, for patent law practitioners, utilizing AI in new ways like drafting patent applications opens a promising frontier for creating novel inventions with positive impacts.
(Read more in this article on the challenges of AI and IP)
Key Takeaways for Startups
As startups navigate the evolving landscape of intellectual property, it's crucial to:
Understand the role of AI in the inventive process and acknowledge its limitations.
Be aware of the increasing standard for non-obviousness due to the prevalence of AI
Know that the use of AI to create new inventions is difficult, as it focuses primarily on things already created and knowledge already out there.
Address emerging concerns around IoT, privacy, and security in the context of IP.
Continually adapt to the evolving IP landscape in the era of AI-driven innovation.
The AI/ET Partnership Series #3 event sheds more light on the path ahead for AI-driven innovation. While new updates and policies are still changing and adapting, it’s clear that more definitive policies will be developed in response to AI and emerging technologies.