Artificial Intelligence

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In a recent decision with important implications for artificial intelligence (AI) driven innovation, the Patent Trial and Appeal Board (PTAB) denied a patent for an AI-based medical tool.[1] The refusal was not because the invention was not new or inventive. Rather, the refusal was because the invention did not meet a fundamental rule of U.S. patent law. In Ex parte Michalek, the PTAB specifically acknowledged that the patent claims at issue recited new information about the nexus between certain biomarkers and the development of lung cancer as facilitated by machine learning. In fact, prior to appeal, the applicant had successfully refuted all arguments raised by the patent examiner that the invention was not new or nonobvious. That said, based on U.S. Patent Office guidance and a related example from that guidance, the PTAB still determined the claims were flawed based on the legal principle of subject matter eligibility. Although the facts in this decision concern medical health innovation, the decision is helpful to inform patent strategy for AI-enabled inventions across various disciplines and industries.Continue Reading PTAB Rejects AI-Driven Medical Patent – Not for Novelty, But Eligibility

AliveCor, Inc. v. Apple, Inc., No. 23-1512 (Fed. Cir. 2025) – On March 7, 2025, the Federal Circuit affirmed the Patent Trial and Appeal Board’s inter partes review (“IPR”) decisions invalidating all claims of three AliveCor patents. Previously, the International Trade Commission (“ITC”) had found certain Apple Watch products infringe two of the three patents. Continue Reading You Snooze, You Lose: Federal Circuit Emphasized Once Again the Importance of Preserving Issues for Appellate Review

The U.S. Copyright Office’s January 2025 report on AI and copyrightability reaffirms the longstanding principle that copyright protection is reserved for works of human authorship. Outputs created entirely by generative artificial intelligence (AI), with no human creative input, are not eligible for copyright protection. The Office offers a framework for assessing human authorship for works involving AI, outlining three scenarios: (1) using AI as an assistive tool rather than a replacement for human creativity, (2) incorporating human-created elements into AI-generated output, and (3) creatively arranging or modifying AI-generated elements.Continue Reading The Copyright Office’s Latest Guidance on AI and Copyrightability

The USPTO has published updated patent eligibility guidance (effective July 17, 2024) for AI-related inventions to help determine subject matter eligibility under 35 § U.S.C. 101. This guidance is timely as roughly 20% of all recent patent filings are AI related. It is important to note that based on prior guidance from February 2024, if an AI tool itself invents something, that is not patentable. Only inventions with significant human contribution are patentable. Thus, this does not preclude AI-assisted inventions. This February guidance was supplemented in April 2024 with AI guidance for practitioners and a request for comments on the impact of AI on certain patentability considerations, including what qualifies as prior art and the assessment of the level of ordinary skills in the art. The period for comments remains open until July 29, 2024.Continue Reading USPTO Issues AI Subject Matter Eligibility Guidance

The USPTO issued guidance on February 6, 2024 that clarified existing rules and policies and discussed how to apply them when AI is used in the drafting of submissions to the Patent Trial and Appeal Board (PTAB) and Trademark Trial and Appeal Board (TTAB). As a follow up, the USPTO has now published additional guidance in the Federal Register on some important issues that patent and trademark professionals, innovators, and entrepreneurs must navigate while using artificial intelligence (AI) in matters before the USPTO. The guidance recognizes that practitioners use AI to prepare and prosecute patent and trademark applications. It reminds individuals involved in proceedings before the USPTO of the pertinent rules and policies, identifies some risks associated with the use of AI, and provides suggestions to mitigate those risks. It states that while the USPTO is committed to maximizing AI’s benefits, the USPTO recognizes the need, through technical mitigations and human governance, to cabin the risks arising from the use of AI in practice before the USPTO. The USPTO has determined that existing rules protect the USPTO’s ecosystem against such potential perils and thus no new rules are currently being proposed.Continue Reading USPTO Issues Additional Guidance on Use of AI Tools in Connection with USPTO Matters

Generative artificial intelligence (AI) may change how we invent: many envision a collaborative approach between human inventors and AI systems that develop novel solutions to problems together. Such AI-assisted inventions present a new set of legal issues under patent law.Continue Reading AI-Assisted Inventions: Are They Patentable? Who is the Inventor?

The White House Executive Order on AI (“EO”) is comprehensive and covers a wide range of topics. We provided a summary here. It addresses many of the risks and problems that can arise with AI. One of the topics which raises many legal issues, particularly with generative AI (“genAI”), is intellectual property. Some of the IP issues include: i) whether training AI models on copyrighted content constitutes infringement; ii) whether the output of genAI that is based on copyright-protected training material constitutes infringement; iii) what level of human authorship/inventorship is required for copyright/patent protection of genAI-assisted works; iv) whether genAI tools that create art “in the style of” particular artists constitutes copyright infringement and/or violate the right of publicity; v) whether genAI tools that are trained on copyright-protected materials must maintain copyright management information; and vi) whether genAI tools, such as AI code generators, that are trained on open source software, must comply with the terms of the open source licenses.Continue Reading White House Executive Order on AI Punts on IP Issues

The US just catapulted into being the world leader on regulating AI. Bypassing Congress, the White house issued an Executive Order focusing on safe, secure and trustworthy AI and laying out a national policy on AI. In stark contrast to the EU, which through the soon to be enacted AI Act is focused primarily on regulating uses of AI that are unacceptable or high risk, the Executive Order focuses primarily on the developers, the data they use and the tools they create. The goal is to ensure that AI systems are safe, secure, and trustworthy before companies make them public. It also focuses on protection of various groups including consumers, patients, students, workers and kids. Continue Reading White House Executive Order Ramps Up US Regulation of and Policy Toward AI

The growth of artificial intelligence (“AI”) and generative AI is moving copyright law into unprecedented territory. While US copyright law continues to develop around AI, one boundary has been set: the bedrock requirement of copyright is human authorship. Given this, it is clear in the US, AI alone cannot be an author. This bedrock principle was reinforced in two recent copyright decisions. But unanswered questions abound. For example, how will the Copyright Office address collaborative or joint works between a human and AI? And will this bedrock principle be limited to generative AI, or may it lead to revisiting copyright protection for other technologies where creative decisions are left to machines?Continue Reading Generative AI and Copyright – Some Recent Denials and Unanswered Questions