1AI: A Disruptive Technology Affecting Industries Across the Board and Presenting Unique IP Legal Issues

By Pavan Agarwal

AI is undergoing transformational growth. AI provides a core, disruptive technology enabling numerous advances in many application areas, including life sciences and high tech alike. Stakeholders from many industries are taking steps to position themselves in this highly evolving field, including health care professionals using digital analytics to better diagnose symptoms, and engineers and computer scientists employing AI in applications from autonomous vehicles to social media.

In the life sciences space, pharma companies are using AI in many areas of drug development, including target identification, drug discovery, preclinical development and clinical trials.  AI can carry out tasks ranging from analyzing data collected in previous trials and scientific literature to analyzing digital biomarkers on disease progression.  https://www2.deloitte.com/us/en/insights/industry/life-sciences/artificial-intelligence-in-clinical-trials.html

On the high tech side, AI has been a true driver in the advancement of autonomous vehicles.  A tremendous amount of data is collected in real-time from sensors, cameras and the like, together with data about many thousands of test miles of roads.  AI enables the vehicle to process a vast amount of data and make split-second decisions to safely navigate a car on a road and respond to quick and sudden changes in environmental conditions.

With the growth in AI comes a huge growth in IP protection, including patents, trade secrets, copyright, and the like.  The number of patent filings is exploding.  The U.S. Patent & Trademark Office reported that the number of AI patent applications has doubled from 30000 in 2002 to 60,000 in 2018.  https://www.uspto.gov/about-us/news-updates/new-benchmark-uspto-study-finds-artificial-intelligence-us-patents-rose-more.  This trend is entirely expected to continue.

AI presents some unique legal issues under our current U.S. IP system.  The inventive activity provided by AI engines performing deep learning presents unique considerations that must be taken into account in seeking patent rights and in collaborations.  For example, patent eligibility under 35 U.S.C. § 101 should be carefully considered in the context of mathematical-heavy algorithms for processing data and various application areas relevant for AI inventions.  The Court of Appeals for the Federal Circuit continues to issue numerous key decisions, and the U.S. PTO has also provided some important guidance impacting AI patent applications.  In addition, more companies are collaborating rather than seeking to grow, or at least while they grow, in-house AI expertise.  Associated license agreements require paying careful attention to provisions from field of use to IP ownership for inventions created during the deep learning activity.