In recent years, AI patent activity has exponentially increased. The figure below shows the volume of public AI patent applications categorized by AI component in the U.S. from 1990-2018. The eight AI components in FIG. 1 are defined in an article published in 2020 by the USPTO. Most of the AI components have experienced explosive growth in the past decade, especially in the areas of planning/control and knowledge processing (e.g., using big data in automated systems). Continue Reading
Note: First published in The Intellectual Property Strategist and Law.com.
This article is Part One of a Three-Part Article Series
Artificial intelligence is changing industry and society, and metrics at the US Patent and Trademark Office (USPTO) reflect its impact. In a recent publication, the USPTO indicated that from 2002 to 2018 the share of all patent applications relating to artificial intelligence grew from 9% to approximately 16%. See “Inventing AI, Tracing the diffusion of artificial intelligence with U.S. patents,” Office of the Chief Economist, IP Data Highlights (October 2020). For the foreseeable future, patent applications involving artificial intelligence technologies, including machine learning, will increase with the continued proliferation of such technologies. However, subject matter eligibility can be a significant challenge in securing patents on artificial intelligence and machine learning.
The harm caused to brands by counterfeiting goes far beyond loss of sales or profits. Fake goods jeopardize public health and safety when a brand’s trademark is applied to a sub-standard and potentially harmful product. This is especially hazardous for counterfeit medical items, mechanical parts, and food products, to name a few. What is more, the reputational damage inflicted by low-quality products can be devastating. Continue Reading
On Wednesday, May 7, 2021, the United States officially endorsed waiving intellectual property protections for COVID-19 vaccines. While the United States has taken the opposite position in recent months, the administration asserts that its departure is guided, at least in part, by the goal “to get as many safe and effective vaccines to as many people as fast as possible.” That goal, however, is unlikely to be affected by such a waiver in the short term due to uncertainty in World Trade Organization (“WTO”) politics, ongoing shortages on raw materials and equipment, and lag-time in retrofitting potential manufacturers. Continue Reading
This article originally appeared in The Intellectual Property Strategist. © 2021 ALM Media LLC. Reprinted with permission.
Companies have historically turned to patent pools as vehicles for achieving shared objectives. A patent pool can be formed when a group of patent holders agree to pool their patents for some purpose. For instance, members of a patent pool may agree to pool and license their patent rights to a third party in exchange for fees or royalties. In this scenario, the pooling companies may own complementary patents that enable a technical standard. Pooling the complementary patents can enable a licensee to develop a product or service. In another scenario, members of a patent pool may agree to pool and cross-license their patent rights to one another. This may occur when a group of companies are developing similar products and services. Here, the members can benefit from shared patent rights that allow them to focus more of their resources on developing their businesses and less on patent transactional and litigation expenses. Continue Reading
Smart contracts are often mentioned in blockchain-themed patent applications and recited in claims. However, Examiners without a thorough understanding of this concept or unfamiliar with blockchain technology often equate smart contracts with legal or commercial contracts stored on blockchains. As a result, the Examiners may find claims directed to merely applying the blockchain technology to execute legal or commercial contracts, for example, as part of a commerce system, like hedging. See, e.g., Alice Corp. Pty. Ltd. v. CLS Bank Int’l, 134 S.Ct. at 2356 (citing Bilski v. Kappas, 561, U.S. 593, 611 (2010)).
Everything is being tokenized these days, including art, games, collectibles and much more. The record prices being fetched have created an NFT frenzy. This distribution model has created a new channel for monetization of creative IP. Given some of the unique aspects of NFTs, IP owners need to rethink their IP protection and licensing strategies. IP protection strategies should include specific protection relating to NFTs. Due to some of the unique aspects of NFTs, various new considerations need to be addressed when licensing IP. NFT creators need to be mindful of potential infringement issues when using third party IP and should also consider IP protection for their original creations. Continue Reading
Many things are being tokenized, but the growth of NFTs for digital art is booming. This, in part, is due to the recent headline news that Beeple’s iconic digital art work was sold at auction by Christie’s for $69 million. Other digital art is being created to leverage pre-exiting IP and physical art. This boom is creating great opportunities for IP owners who want to license their IP for use in NFTs. However, for those just entering the space, there are many things to consider given some of the unique aspects NFTs and digital art. Continue Reading
On February 10, 2021, the Federal Circuit in Infinity Computer Products, Inc. v. Oki Data Americas, Inc., No. 20-1189 (Fed. Cir. 2021) affirmed a decision by the U.S. District Court of Delaware that patent claims were invalid for indefiniteness based on conflicting positions taken by the patentee during prosecution. Specifically, the Federal Circuit held that the conflicting positions leave one of ordinary skill without reasonable certainty regarding the scope of the invention. This Federal Circuit decision is a reminder to patent applicants that piecemeal success before the Patent Office that does not conform to a coherent overarching prosecution strategy can invalidate patent rights. Continue Reading
Blockchain patent applications may be divided into two types: underlying technologies of blockchain, such as consensus methods, security, etc., and applications of blockchain in, e.g., fintech, legal, and other industries. In patent examination, the first type, because it recites underlying technology improvement, rarely elicits subject matter rejections. The second type, applications of blockchain, are often found to be directed to an abstract idea. This article analyzes a recent Patent Trial and Appeal Board (PTAB) decision in a blockchain patent application and explores drafting and prosecution strategies to anticipate subject matter scrutiny. Continue Reading