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Using AI in your Patent Practice

Patent, , , ,

By Dennis Crouch

Over the past year I've been investigating various generative Artificial Intelligence (GenAI) tools for assisting patent attorneys in their practice.  I have a strong belief that these tools and their progeny are now fixtures in our legal environment and are being used to both improve efficient delivery of legal services and to also improve the quality of those services.  Of course the generative creativity of our LLMs go hand in hand with hidden false narratives or hallucinations. Vendors are stepping up to thread the needle here: providing valuable GenAI tools while limiting false story telling.  As we move forward some of the struggle will be a focus on how much the attorney needs to know about how the GenAI works in order to use it responsibly.

Enter the USPTO and its Wet Blanket: The USPTO has released new guidance on the use of AI tools in practice before the USPTO.

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Guidance on Examining Means Plus Function Claims

Patent

This week USPTO Commissioner for Patents Vaishali Udupa issued a memorandum to all patent examiners entitled "Resources for Examining Means-Plus-Function and Step-Plus-Function Claim Limitations (35 U.S.C. 112(f))." The purpose of the memo is to remind examiners of the resources and guidance available when examining claims under 35 U.S.C. 112(f), commonly referred to as "means-plus-function" or "step-plus-function" claims. The memo summarizes key points regarding:

  1. Determining whether a claim limitation invokes 112(f)
  2. Clearly communicating on the record when 112(f) has been invoked
  3. Evaluating the adequacy of the supporting disclosure

The USPTO has also requested public feedback on the guidance (6/18/24 deadline).  Examiners will apparently undergo some training. Although not clear if this will be enforced, it may become more of a requirement for examiners to provide a claim construction section in their office action rejections.

Although the memo is generally helpful, there are two points of guidance that are lacking, and that I discuss below:

  1. How is BRI applied at the initial stage of determining whether a claim is written in means-plus-function form?
  2. How are means-plus-function limitations evaluated under the 112(a) written description and enablement requirements. Particular, must the "equivalents" covered by the claim be adequately supported by the specification?

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Making a Proper Determination of Obviousness

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by Dennis Crouch

Earlier this week, the USPTO published updated examination guidelines regarding obviousness determinations under 35 U.S.C. §103. While these new guidelines are not legally binding, they offer important insight into how the Office plans to apply an even more flexible approach to obviousness -- something Director Vidal sees as mandated by the Supreme Court’s 2007 decision in KSR Int'l Co. v. Teleflex Inc., 550 U.S. 398 (2007). (2500 words).

Read the Guidance Here.

Overall the guidance here suggests that the office is looking to make non-obviousness a larger hurdle via increased flexibility.  Still, the guidelines spend some time on the requirements of a prima facie case; the necessity of both evidence and reasoning to support any obviousness rejection; and consideration of all evidence before the examiner.  Obviousness is already the most common rejection - with the vast majority of applications being initially rejected as obvious.  It will be interesting to see whether the rates go up even further following this new guidance. 

This post breaks down the guidelines and walks through some potential strategies for patent applicants. 

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Publicly Traded International Patent Firm IPH Continue Growth through Acquisition

Patent

by Dennis Crouch

The publicly traded Australian company IPH Limited continues expanding its global intellectual property services empire. IPH's latest acquisition is the Canadian IP firm Ridout & Maybee for $65 million Canadian dollars. This comes just 10 months after IPH purchased Canada's largest IP firm, Smart & Biggar.

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Looking Back: Graver Tank after 70 years

Patent

by Dennis Crouch

The Supreme Court's landmark 1950 decision in Graver Tank & Mfg. Co. v. Linde Air Products Co., 339 U.S. 605 (1950) is one of the court's most cited patent cases.  The decision established important guideposts for applying the doctrine of equivalents ("DOE"), including consideration of the prior art and a focus on the substantiality of differences. While courts today emphasize evaluating equivalence on an element-by-element basis, Graver Tank's substantive analysis remains highly influential.

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DC District Court: AI-Created Works Ineligible for Copyright 

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By Dennis Crouch

Thaler v. Perlmutter, No. 22-1564 (D.D.C. Aug. 18, 2023). 

A federal court has dealt a blow to the prospect of granting copyright protections to works created entirely by artificial intelligence systems. In their recent decision, Judge Howell ruled that because AI systems lack human authorship, their output is ineligible for copyright.

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