Brett Trout
In a major shift that could shape the future of artificial intelligence innovation, U.S. Patent and Trademark Office (USPTO) Director Kathi Vidal has been joined by newly appointed agency director John Squires in taking a strong stand in support of patent protection for AI technologies.
Squires recently made headlines for pushing back against a Patent Trial and Appeal Board (PTAB) decision that, if allowed to stand, could have blocked patent protection for wide swaths of AI innovation. Squires warned that the PTAB’s logic risked making “much of AI unpatentable,” a conclusion he called legally flawed and dangerous for American competitiveness.
The message is clear: the USPTO is not only listening to inventors but also working to clear the path for innovators using artificial intelligence. And it could not have come at a better time.
AI Innovators Have Been in Limbo
In recent years, developers of artificial intelligence have faced increasing uncertainty about whether their inventions qualify for patent protection. With courts and tribunals tightening rules around what counts as patentable subject matter, many AI-related patent applications have hit roadblocks. The concern has been that a luddite patent examiner might view an invention applying AI to solve a problem as a patent-ineligible “abstract idea,” especially if the solution involves software or data.
In July, the USPTO issued updated guidance clarifying that AI inventions can be patentable if they are tied to specific, practical outcomes and do more than simply apply AI to an existing process[1]. This was a welcome step, but the recent comments from Squires go further. They show the Patent Office is willing to push back against internal decisions that don’t align with the goal of protecting American innovation.
A Green Light for AI Patents?
Squires’ remarks are more than just legal commentary. They signal a green light for AI inventors who may have been holding back on filing patent applications due to fear of rejection. They also provide patent attorneys with new ammunition to fight back against overly narrow interpretations of patent law.
The key takeaway for inventors and startups working on artificial intelligence is this: the USPTO is not your enemy. In fact, its top leadership is actively working to ensure that AI innovation gets the legal protection it deserves.
What Should You Do Next?
If you’ve been developing AI technology, now is the time to take action. Review your innovations to see what may be patentable. Focus on outcomes. If your invention produces a real-world result, not just a calculation or prediction, it may very well qualify for a patent under the current guidance.
But not all patents are created equal. If you hired 50 different patent attorneys to draft a patent on your new AI system you would get back 50 different patents. Each of these patents would all have a different likelihood of being granted and all have different scopes of protection. To give yourself the best chance of getting your AI patent issued with the broadest scope of protection, your patent claims (the legal scope of your patent) must focus on specific, technical improvements, rather than current AI buzzwords. As always, the devil is in the details. You cannot get a great AI patent unless you start with a great AI patent application.
And don’t wait. While the USPTO has extended its comment period on AI-related patent eligibility to October 16, 2024[1], there’s no guarantee these new interpretations will last forever. Once public comments are reviewed and finalized, the Patent Office may adjust its approach. Filing early gives you the best chance of locking in your rights under conditions more favorable than they have ever been, and may ever be again.
Final Thoughts
For those of us who have been working with inventors navigating the muddy waters of AI patent law, Director Squires’ comments are a breath of fresh air. They confirm what we’ve long argued: AI is not some magical concept outside the reach of patent law. It is a tool, one that, like any other, can be used in innovative ways that deserve protection.
The Patent Office is finally catching up to the technology. And for once, it’s good news.
Sources
[1] Brett J. Trout, “Patent Office Extends Deadline for Comments on Patents Covering Artificial Intelligence” (2024).
Recent Comments