Attorney:
James R. Love
November 1, 2021
Drafting claims with infringement in mind has always been a challenge. For instance, claims should be drafted to ensure that they can be infringed by a single party in order to address divided infringement issues. Similarly, it may be useful to draft claims in a way that avoids requiring end-user infringement as end-users may not be the best target when considering litigation. In the same vein, it is important to draft claims in a way that infringement is detectable, as a patent owner must have facts that provide a plausible entitlement to relief. This means that the patent owner must have some basis to allege that the patent claims are being infringed. If the claims include features that are not readably detectable, the claims may, in effect, be useless when considering infringement. This is especially true in Artificial Intelligence where many features are difficult to easily detect without intimate knowledge of the AI system. In fact, AI systems are often considered black box systems in which the inner workings are not evident to the outside and sometimes not even to the operator of the AI system.<... Read more
Attorney:
James R. Love
March 17, 2021
As has been discussed here previously,[1] the current position of the USPTO is that Artificial Intelligence (AI) cannot be an inventor.[2] The USPTO’s position on the matter has been challenged in district court in Thaler v. Iancu, et al, 1:20-cv-00903.[3] Although the case is not yet complete, it is likely that the court will side with the USPTO and hold that AI cannot be considered to be an inventor of a US patent application based on 35 U.S.C. § 100(f), which clearly states that “the term ‘inventor’ means the individual, or, if a joint invention, the individuals collectively who invented or discovered the subject matter of the invention.” Although Thaler, the Plaintiff in the case, has made a number of policy arguments for inclusion of AI inventorship, a ruling in his favor would be a surprise.<... Read more