We want to accelerate AI innovation without locking it down

“We want people to understand that this is a good faith effort to provide greater clarity and certainty to the public, while at the same time underscoring our desire for people to trust AI and use it responsibly to bring innovative products to market,” said USPTO Director Cathy Vidal.

The United States Patent and Trademark Office (USPTO) today announced that it has updated its subject matter eligibility guidance to more directly address emerging technologies, specifically artificial intelligence (AI). The guidance also includes three new detailed examples using hypothetical claims to address common situations, such as whether a claim recites an abstract idea and whether a claim integrates an abstract idea into a practical application.

The right balance

The USPTO last updated its eligibility guidance in 2019, under former USPTO Director Andrei Iancu, in an effort to help examiners apply the two-part Alice/Mayo test more predictably. In an exclusive interview with Gene Quinn, CEO and founder of IPWatchdogs, Vidal said that today's guidance is not a departure from that, but is intended to provide additional examples based on the patent office's collective history since 2019.

Overall, when it comes to policy at the intersection of AI and intellectual property, Vidal said, we want people to use AI, we want people to innovate with AI, we want people to embrace AI, but we want to make sure we strike the right balance so that AI is used for innovation and not used to stifle innovation.

Referring to the Patent Office's February 2024 guidelines for determining inventorship of artificial intelligence (AI)-assisted inventions, Vidal explained what negative consequences could result from failing to strike this balance.

If we allow A.I. [to obtain] With U.S. patents, someone is free to use AI to invent any chair, regardless of what role AI played in the invention process. And they'll patent any chair. And they'll lock in innovation. We want to accelerate innovation and also get it to market. We don't want to lock people out of being able to patent in that field.

The February inventorship guidelines clarified that AI-assisted inventions are not categorically unpatentable, but that inventorship analysis should focus on human contributions because patents function to encourage and reward human ingenuity. Comments closed on June 20, and Vidal said the patent office received 66 unique comments, most of which agreed with the basic principles that 1) inventors must be natural persons, 2) the focus of the investigation should be human contributions, and 3) AI-assisted inventions are not categorically unpatentable.

In a recent Wall Street Journal op-ed, former USPTO directors Iancu and David Kappos charged that the inventor guidelines could inadvertently hinder inventors' use of artificial intelligence tools.

The eligibility guidance issued today includes a section indicating that whether an invention was created with the assistance of AI is not a consideration in application of the Alice/Mayo test and the USPTO eligibility guidance and does not preclude USPTO personnel from determining that a claim is subject matter eligible.

The previous guidance was successful

Citing USPTO rejection data, Vidal said that since 2019, the USPTO's SME (subject matter eligibility) rejection rate has been consistently below 11%. The rate in February 2023 was 8.7%. Furthermore, Vidal added that the Patent Trial and Appeal Board has consistently upheld examiners' decisions on SME rejections at a rate higher than the average rate of reviewed rejections. In 2021, the Board upheld these rejections about 87% of the time. The CAFC has upheld the Patent Office 100% of the time on SME rejections appealed to the CAFC (85 appeals) since the 2019 guidance was introduced. Vidal said this success rate is why he focused on issuing guidance in the AI ​​field. The same playbook can create consistency. [eligibility] The guidance works, and we're not trying to change it, just adding clarity and providing examples in an AI context.

update

The JPO issued a Request for Comments (RFC) in 2019, seeking comments on patenting AI inventions. Those comments were compiled in a report published in October 2020, which found that patent system users are divided on whether the current intellectual property framework is sufficient to address AI inventions or whether new laws are needed. Today's updated guidance notes that some commenters were concerned that AI inventions could be characterized as abstract ideas and therefore at risk under the subject matter eligibility analysis.

According to the Guidance, stakeholder feedback indicates that there are certain areas of particular concern when considering subject matter eligibility for AI inventions: (1) evaluating whether the claims recite an abstract idea under Criterion 1 of Step 2A, and (2) evaluating consideration of improvements under Criterion 2 of Step 2A.

Accordingly, this guidance includes several examples of AI claims that do and do not recite an abstract idea to help examiners make this evaluation. We first provide some non-limiting hypothetical examples of claims that do not recite an abstract idea, and then provide examples from recent U.S. Court of Appeals for the Federal Circuit (CAFC) cases regarding representative claims.

Regarding claims that do not recite an abstract idea in the form of a mathematical concept, the Guidance points to XY, LLC v. Trans Ova Genetics, 968 F.3d 1323, 1330-32 (Fed. Cir. 2020), where the CAFC held that the claims at issue, even though they did contain a mathematical concept, were not directed to the abstract idea of ​​using a mathematical formula that allows for rotating multidimensional data.

As judicial examples where claims directed at particular ways of organizing human activity cannot be granted, the guidelines cite cases such as Weisner v. Google LLC, 51 F.4th 1073, 1082 (Fed. Cir. 2022), Elec. Commcn Techs., LLC v. ShoppersChoice.com, LLC, 958 F.3d 1178, 1181 (Fed. Cir. 2020), and Bozeman Fin. LLC v. Fed. Reserve Bank of Atlanta, 955 F.3d 971, 978 (Fed. Cir. 2020).

An example of a claim that does not recite a mental process because it cannot actually be carried out in the human mind is the RFID transponder claim at issue in ADASA Inc. v. Avery Dennison Corp., 55 F.4th 900, 909 (Fed. Cir. 2022).

The Guidance then provides an example of the second test in Step 2A, whether evaluation of the claim as a whole integrates the judicial exception into its practical application.

While the Guidance notes that an improvement in judicial exceptions is not, in and of itself, an improvement in technology, it cites In re Board of Trustees of Leland Stanford Junior University, 989 F.3d 1367, 1370, 1373 (Fed. Cir. 2021) (Stanford I) and points to McRO, Inc. v. Bandai Namco Games America Inc., 837 F.3d 1299 (Fed. Cir. 2016) as an exemplary case illustrating such an improvement. The Guidance explains:

The Court found that incorporating certain claimed rules into computer animation [the] existing technological process. Therefore, USPTO personnel must analyze the claim as a whole when determining whether the claim provides an improvement in computer functionality or an improvement in another technology or technical field.

This section also contains many other examples from Federal Circuit case law involving claims that improve upon technology and are not directed to judicial exceptions.

The three new, and highly detailed, examples illustrate hypothetical cases of both eligible and ineligible claims under the guidelines, according to Vidal.

from now on

“Ultimately, we hope people will understand that this is a good faith effort to provide more clarity and certainty to the public, while at the same time reinforcing our desire for people to trust AI and use it responsibly to bring innovative products to market,” Vidal said.

Today's eligibility guidance will be open for comment for 60 days after publication, and Quinn asked Vidal about the types of comments the department is most likely to consider, given that the guidance goes into effect on July 17 and has already gone through an extensive review process that included international counterparts.

“We're pretty confident about that,” Vidal said. “That being said, there may be something in there that people want to comment on. The best feedback is the most specific feedback. Examiners will have the opportunity to give feedback as well. They're going to be trained and if there's anything they think could be expressed better, they can give us feedback.”

Vidal pointed again to the AI ​​inventor guidance, saying one of the comments it was considering introducing asked for an example in the context of design patents. “This is a good comment and will further strengthen the guidance,” she said.

But, she added, “We welcome all feedback. This is a difficult issue and we are open to considering any ideas that fit with our mission and our goal of encouraging innovation, not locking it away, and harmonising it internationally.”

Vidal also told IPWatchdog that he would welcome potential legislation regarding eligibility, in the sense that anything that brings more clarity and certainty regarding eligibility would be a positive. He noted that the department has attempted to intervene through amicus briefs in cases such as David A. Tropp v. Travel Sentry, Inc. et al. and Interactive Wearables, LLC v. Polar Electric Oy, but they were never upheld. “Any mechanism that brings more clarity and certainty would be welcome,” Vidal said.

But when asked if the office should wait for legislation rather than issue guidance now, Vidal said the office cannot do that.

We have to get the agencies up and running right now. As legislation is enacted, it may be necessary in certain areas as feedback comes back, but as far as the problems we can solve, we need to do what's best for the country with what we have right now.

The USPTO also issued a notice this week about an upcoming listening session on “The Impact of the Rise of Artificial Intelligence (AI) on Prior Art and Persons of Ordinary Skill in the Art (PHOSITA).” The event will be held at USPTO Headquarters on July 25th, and the deadline to register as a speaker is July 19th.

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