AI and Intellectual Property: Revolutionizing Patent and Trademark Law
Discover the Challenges of AI-Powered Tools for Attorneys in Patent and Trademark Law Cases
In patent and trademark law, AI is transforming how attorneys approach intellectual property (IP) cases, providing them with powerful tools to streamline their work and make better decisions.
One of the primary ways AI is being used in patent law is through the analysis of vast amounts of data involved in patent searching. Traditionally, patent attorneys manually sifted through patent databases looking for relevant information. That sifting was required to establish connections or distinguish client inventions to maximize patentability or fight off a potential infringing product or invention. AI-powered tools can now analyze patent databases at a much faster pace, identifying relevant patents, prior art and other important information. This allows patent attorneys to save time, reduce costs, and make more informed decisions.
AI is also being used to assist with the drafting of patent applications. AI-powered tools can analyze the language used in existing patents and make suggestions for new patent application wording. This process helps attorneys identify potential issues or opportunities that they may have otherwise missed.
Another area where AI is having a significant impact is in trademark law. AI-powered tools can analyze vast amounts of data to identify potential trademark infringements, allowing attorneys to take swift action to protect their clients’ trademarks. AI can analyze images, logos, trade dress and other features that contribute to successful trademark infringement prosecutions and defenses. These tools can also help with the registration process by analyzing trademark applications for potential issues that could lead to rejection.
AI Infused Inventions are Patentable….By Humans.
The Federal Circuit recently held that only natural persons can be listed as inventors on U.S. patents. 43 F.4th 1207 (Fed. Cir. 2022). AI-augmented inventions or inventions directed to AI subject matters may be patentable. Provided the AI system’s work is driven by a human researcher/inventor, it is available for patent protection like a purely human created invention.
The USPTO and courts have held that patentability for AI-assisted inventions must be based on the human inventive acts. Those acts can be enhanced using AI as a tool. (Id). Natural persons can be named as inventors of AI inventions for their contributions, such as designing AI algorithms, implementing hardware to enhance an algorithm, or developing an AI system. An AI tool itself is not eligible to be listed as an inventor of any potentially patentable device.
AI-related inventions typically encompass advances in AI architecture, computational techniques, hardware/material components and specific uses of artificial intelligence. Patent applications for AI-based inventions should include a sufficient disclosure of at least an algorithm and computer hardware. The description should detail the AI process, including how it is used, how it improves an overall technical process or solves a technical problem, and examples of training data sets input into an AI module.
Potentially successful claims covering AI inventions would have to focus on how AI is architecturally integrated into a system, the sources of data used as input, how AI is distinguishable from other systems, or particular operations within an AI system as examples. Claims reciting building and testing the use of AI or running an AI algorithm on data are more challenging to qualify as patentable subject matter however.
Patent lawyers are likely going to have a good run for the next 5-10 years purely because of the wave of AI assisted start-ups in the Legal AI world and beyond.