February 23, 2024
Article
Guidance on the Utilization of Artificial Intelligence in Patent Application Drafting
By Ian Schick, PhD, Esq
In February 2024, USPTO Director Kathi Vidal issued a memorandum clarifying how existing practitioner conduct rules apply to the use of artificial intelligence in patent application drafting. The guidance affirms that AI-generated submissions are permissible if practitioners thoroughly review and verify their accuracy, addressing concerns raised by Chief Justice John Roberts about AI's potential to produce erroneous information. Director Vidal's memo highlights the efficiency benefits of AI in patent drafting while reinforcing the importance of maintaining accuracy and professional integrity. The USPTO plans to issue further public guidance, promoting responsible integration of AI to enhance patent application processes.
In February 2024, the Director of the United States Patent and Trademark Office (USPTO), Kathi Vidal, issued a memorandum to the Patent Trial and Appeal Board (PTAB) and the Trademark Trial and Appeal Board (TTAB), clarifying the application of existing regulations concerning practitioner conduct in relation to artificial intelligence (AI). This memorandum comes in the wake of Chief Justice John Roberts' year-end report, highlighting the judicial system's engagement with generative AI as a significant technological advancement, while also acknowledging potential issues such as the generation of inaccurate information or "hallucinations."
Director Vidal's memo affirms that current USPTO conduct rules adequately cover the use of AI in drafting patent applications, emphasizing that the integrity of legal proceedings is maintained irrespective of whether submissions are AI-generated, provided they undergo thorough review by practitioners. Specifically, the memo addresses the importance of verifying the accuracy of AI-generated content to prevent the submission of documents with erroneous citations, which could otherwise lead to sanctions.
Moreover, the memo reinforces that the method of document preparation, including the use of AI tools, does not in itself constitute a violation of USPTO rules, thereby supporting the adoption of AI technologies to enhance the efficiency of patent drafting processes. The guidance also previews the USPTO's plans to issue further public guidance on the use of AI tools in patent applications, aiming to clarify existing rules' applicability to AI-assisted submissions.
This directive by Director Vidal is a forward-looking step, encouraging patent practitioners to integrate AI technologies into their workflow, potentially halving drafting times while ensuring compliance with professional standards. It underscores the potential of generative AI to augment human capabilities rather than replace them, aligning with the judicial perspective on maintaining human oversight over AI's legal applications. This approach seeks to balance the innovative benefits of AI with the need for accuracy and integrity in legal processes, ensuring that AI's integration into patent law progresses responsibly and effectively.