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AI adds urgency to patent debate

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Jan 22, 2024
USPTO sign is pictured near its building

The USPTO seal outside the headquarters. Photo: Andrew Harrer/Bloomberg via Getty Images

Congress is taking up a debate on the future of what can be patented in the United States, including artificial intelligence.

Why it matters: Congress and the courts are grappling with the question of what technology ideas and applications can be patented, with the issue getting even thornier through AI advances across many industries.

  • Congress has struggled to update U.S. patent rules and laws to keep up with technology for years already, and AI is making it an even more pressing issue.
  • At the same time, Google is fighting allegations in a Boston court that it infringed patents for processors the company uses to power its AI technology.

Details: This week, the Senate Judiciary IP subcommittee will hold a hearing on the Patent Eligibility Restoration Act.

  • The bill would widen the scope of inventions protected by patents by overruling prior court decisions on patent eligibility for both life sciences and technology including AI.
  • Sponsored by Sens. Chris Coons and Thom Tillis, the bill is meant to clear up what can be patented across fields like biotechnology, personalized medicine, AI and blockchain.
  • Supporters of the legislation argue that the U.S. deems ineligible what can be easily patented overseas, and that it hurts competition.

What they're saying: "The Supreme Court has made it very unclear whether AI or other computer-implemented technology can be patented, and a lot of AI falls on the side where it's questionable," Jamie Simpson, chief policy officer and counsel for the Council for Innovation Promotion, a group that fights for increased patent protection in the U.S., told Axios.

  • "In contrast, AI is being patented in China and Europe. While there might be broader conversations about what AI should do for society, as a baseline, we should make sure we have the same protections that exist elsewhere in the world."

The other side: Tech and public interest officials tell Axios the bill would let people patent abstract ideas and increase patent trolling.

  • CCIA said of an earlier iteration of the bill that it had "concerns about the expansion of eligibility."
  • The ACLU has said the bill would result in patent abuse and an elimination of legal research-sharing for public health.

The big picture: The U.S. Patent and Trademark Office is currently soliciting comments on AI and inventorship.

  • It's asking people to submit answers on a number of questions, including how AI is being used in invention creation, whether the agency needs to put out new guidance, whether any federal laws need to change, and whether AI systems themselves should be considered inventors.

Meanwhile, in Boston, a computer scientist has alleged that Google owes his company $1.67 billion for alleged patent infringement of processors.

  • Joseph Bates of Singular Computing says Google copied his technology after a number of meetings he had with the company to discuss AI development, per Reuters, rather than licensing the processing units for use.
  • "Singular's patent claims are dubious and currently on appeal," said José Castañeda, a Google spokesperson. "They don't apply to our Tensor Processing Units, which we developed independently over many years. We look forward to setting the record straight in court."
  • Separately, Google and Singular are duking it out over patent validity in a separate case at the USPTO.

Reality check: It's an election year, and a patent-related bill faces an uphill climb to passage in Congress.

  • But we expect the issue to remain hot as courts are left to figure out what is eligible to be patented and companies of all sizes race to beat one another on AI.
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