The rapid advancement of artificial intelligence (AI) has brought about a significant challenge to the intellectual property (IP) landscape. The United States Patent and Trademark Office (USPTO) has issued a Request for Comments (RFC) on the impact of AI on prior art, the knowledge of a person having ordinary skill in the art (PHOSITA), and determinations of patentability. The RFC poses 15 questions related to the impact of AI on assessing prior art, the knowledge of a PHOSITA, and patentability. The USPTO seeks input on questions about whether AI-generated disclosures should be afforded the same rebuttable presumption that they are operable and enabled, and how AI impacts the assessment of a PHOSITA’s level of ordinary skill in the art.
The USPTO’s inquiry suggests that the office may issue guidance on how to treat AI-generated prior art and assess the knowledge of a PHOSITA, which has the potential to impact various stakeholders in the innovation ecosystem. Patent applicants, patent owners, and patent practitioners will need to adapt to the changing landscape of IP law. The increasing sophistication of AI tools might alter the standard for the “level of ordinary skill in the art.” Moreover, AI’s ability to generate prior art references quickly could pose initial obstacles to an applicant’s ability to obtain a patent. The cost in terms of time and money to obtain patents could increase if AI-generated disclosures are available as references.
In my opinion, the USPTO’s efforts to address the impact of AI on IP law are commendable. However, it is crucial that stakeholders participate in the ongoing dialogue to ensure that the IP system adapts to the complexities of AI-assisted inventions. The future of IP law depends on a collaborative effort to foster a system that promotes innovation while upholding the principles of a robust and adaptable IP system.
