In the article “Prior Art Problems: Counsel Mull AI-Generated Disclosures,” partner Mauricio Uribe offered insight on the recent Request for Comment (RFC) from the US Patent and Trademark Office (USPTO), including the solicitation of comments on the potential effects of AI-generated prior art and an AI-assisted prosecution, especially for AI-assisted determination of non-obvious subject matter under Section 103 of the U.S. Patent Act.
One of the areas of focus in the article was the potential impact on AI-generated art. Uribe did not feel that this was a current problem for patent applicants, so it was assumed that the USPTO’s RFC anticipated potential future issues that could develop. Such issues can include the potential for AI-generated prior art to include incorrect or incomplete technical descriptions and how that might impact patent prosecution and invalidity proceedings.
Specifically, speaking on the USPTO’s current presumption of operability in relation to prior art, Uribe acknowledged that AI-generated prior art could complicate the implementation of this standard. “A lot of the generated work product from AI ends up being nonsensical or has some fundamental flaws,” he says. “Now the question’s going to be, what’s going to be the procedure for challenging something like that? Have we increased the cost of interactions with the patent office?”
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