The prevalence and power of AI technologies are rapidly expanding, both at the captivating cutting-edge of creative AI models like the DALL-E image generator and the ChatGPT chatbot, and in the increasing pervasiveness of household and industrial applications of AI systems like autonomous vehicles and intelligent virtual assistants.
The ascendance of AI technologies continues to be clearly reflected in patent filing trends. Innovators have filed hundreds of thousands of patent applications directed to AI-related inventions in recent years, making AI the fastest-growing major technology area in global patent filings, boasting a 28% average annual growth rate from Q1 2018 to Q1 2022, according to a report by GlobalData. The highest-volume patent filing areas within the AI space have been machine learning (ML) models, speech recognition, image analysis, and natural language processing systems, while other areas seeing rapid AI patenting include autonomous vehicles, robotics, medical devices, laboratory and assay equipment, bioinformatics, chemometrics, drug discovery, diagnostics, and personalized medicine.
The United States Patent and Trademark Office (USPTO) has also recognized the increasing importance of patenting in the AI space. In June 2022, the USPTO kicked off its AI and Emerging Technology Partnership, a cooperative effort between the USPTO and the AI community that the USPTO says will “foster and protect innovation in Artificial Intelligence (AI) and Emerging Technologies (ET) and bring those innovations to impact to enhance our country’s economic prosperity and national security and to solve world problems.” Along with this engagement effort, USPTO patent eligibility guidance has continued to assist patent applicants in drafting patent-eligible claims protecting AI and ML inventions.
Finally, global patent offices and courts continue to align behind the conclusion that—while patenting AI technologies is critically important—AI systems themselves cannot be named as inventors under existing patent systems. In the U.S., the Federal Circuit held in August that an AI system does not constitute an “individual” under the Leahy-Smith America Invents Act (AIA) and therefore cannot be listed as an inventor on a patent. See Thaler v. Vidal, 43 F.4th 1207 (Fed. Cir. 2022). Left for another day, however, was the more difficult question of “whether inventions made by human beings with the assistance of AI are eligible for patent protection.” Id at 1213.
This post is a part of a series on trends in the artificial intelligence space for 2023, authored by MoFo lawyers.
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