In its history of over 200 years, the United States Patent and Trademark Office (USPTO) has granted over 10 million domestic patents. Now it seems that America’s highest authority on patents is a little cautious about understanding artificial intelligence in detail to help grant AI-based patents. This seems to be the case, as USPTO has invited public comments on various patent-related issues.
USPTO said that it is for evaluating whether further examination guidance is required for encouraging the reliability and predictability of patenting AI inventions. UPSTO has already published 12 questions relating to several AI patent issues, covering a diverse set of subjects ranging from patent examination policy to whether novel types of IP protection laws are required.
Here are the 12 questions that USPTO is seeking public comments on:
- What are the elements of an AI invention?
- What are the different ways that a natural person can contribute to the conception of an AI invention and be eligible to be a named inventor?
- Do current patent laws and regulations regarding inventorship need to be revised to take into account inventions where an entity or entities other than a natural person contributed to the conception of an invention?
- Should an entity or entities other than a natural person, or company to which a natural person assigns an invention, be able to own a patent on the AI invention?
- Are there any patent eligibility considerations unique to AI inventions?
- Are there any disclosure-related considerations unique to AI inventions?
- How can patent applications for AI inventions best comply with the enablement requirement, particularly given the degree of unpredictability of certain AI systems?
- Does AI impact the level of a person of ordinary skill in the art? If so, how? For example: Should an assessment of the level of ordinary skill in the art reflect the capability possessed by AI?
- Are there any prior art considerations unique to AI inventions?
- Are there any new forms of intellectual property protections that are needed for AI inventions, such as data protection?
- Are there any other issues pertinent to patenting AI inventions that we should examine?
- Are there any relevant policies or practices from other major patent agencies that may help inform USPTO’s policies and practices regarding patenting of AI inventions?
Ensuring The Reliability Of Future AI Patents
The reason why USPTO is looking to gather public information on AI patents is because of the varying levels of potential uncertainties in such patent filings. AI methods and systems can differ in their technical implementations and also rely on a large amount of training by developers, inventors and system users, according to USPTO. The agency reported that it has been looking into AI and related inventions for decades now and although it has already issued several guidelines in this regard, it is reevaluating those to ensure the reliability of future patents. USPTO has reported it seeks more engagement with the technology community and AI experts to continue working on future guidelines related to granting AI patents on the inventions.
“With respect to AI inventions to date, the USPTO has issued thousands of patents on AI technologies, and the future grows more exciting every day as new AI technologies are developed. However, with excitement comes change, and the potential for uncertainty. Therefore, the USPTO must continue to ensure an appropriate balance in the administration of our IP system,” said Laura Peter, Deputy Director of the USPTO.
There are multiple complexities that may arise that make granting patents on artificial intelligence challenging. For example, as per the prevalent patent seeking guidelines of USPTO, applicants of AI inventions are required to present a written description along with a sufficient disclosure of the algorithm that performs a perform a claimed function. This is done so it can be reasonably concluded that the inventor had possession of the claimed invention. USPTO asks whether there needs to be a change in the level of detail an applicant must provide in order to comply with the written description requirement, particularly for deep-learning systems that can have a large number of hidden layers with weights that evolve without human intervention during the learning/training process.
At a time when AI inventions are taking the world by storm, USPTO’s stance in understanding the various aspects of the technology is commendable. This will help in increasing the reliability and predictability of future patents in the US and for other countries to learn from. Apart from patents, USPTO is also looking to examine the full spectrum of intellectual property policy issues that have arisen due to advancements in artificial intelligence technologies. This includes economic frameworks created as a result of AI innovation, patents, trade secrets, trademarks and copyright issues. This will help with any lack of legal clarity on inventions, laws and policies related to AI.