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Patent Law Proposed patent reforms will harm AI innovation, Google GC says

By Amanda Robert

August 24, 2023, 9:45 am CDT

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“Patent policy has an important role to play in promoting AI innovation, as we know from Google’s decadelong emphasis on patenting our AI developments,” said Halimah DeLaine Prado, the general counsel at Google. Image from Shutterstock.

Google criticized the U.S. Patent and Trademark Office this week for proposed changes to the process for patent challenges, saying they will likely limit opportunities for innovation in artificial intelligence.

“The USPTO evaluates hundreds of thousands of claimed inventions each year, with an ever-growing percentage involving claims over new AI technology,” said Halimah DeLaine Prado, the general counsel at Google, in an Aug. 23 letter to the office. “Unfortunately, various new proposals would make it much harder for the agency to correct any errors in the patent examination process, stifling developers and U.S. innovation.”

According to Reuters, which obtained and published Google’s letter, the Patent and Trademark Office announced in April that it was considering modifications to inter partes review and post-grant review proceedings before its Patent Trial and Appeal Board. These proceedings were designed to provide a cheaper and often more effective alternative for resolving patentability issues than district court litigation.

Reuters reports that among its proposed changes, the Patent and Trademark Office suggested imposing new limits on who can file petitions for patent review and tightening the standards for granting requests for review.

In her letter, DeLaine Prado asked the Patent and Trademark Office to maintain its current inter partes review program, contending that it was “carefully constructed to address examination errors, providing expert, efficient and cost-effective review of the small subset of patents with the greatest impact on our economy.”

She pointed out that the office’s proposed changes to inter partes review would make it more difficult to access the program and lead to uncertainty and increased abuses in patent litigation proceedings.

“The USPTO can prevent this and help America realize AI’s benefits by withdrawing proposed changes that would restrict access to inter partes review,” DeLaine Prado said. “If a patent challenge is timely and has merit, meeting the strict requirements Congress already put in place, it should be heard by the USPTO.”

DeLaine Prado also asked the Patent and Trademark Office to provide patent examiners comprehensive technical training on AI, so that “deserving AI-related patents are granted, while those that would hinder further AI innovation—like patents that simply ‘apply AI’ to basic ideas—are not.”

She said training would help avoid the problems that were seen with early software patents.

And, DeLaine Prado added, to support this work, she suggested that the Patent and Trademark Office increase patent filing and examination fees for large companies, including Google.

“Patent policy has an important role to play in promoting AI innovation, as we know from Google’s decadelong emphasis on patenting our AI developments,” she said. “This long runway of expertise has given us a clear sense for what is needed to promote innovation to further the progress of science and benefit the public.”

Reuters reports that Apple, Microsoft and Amazon have also voiced concerns over the Patent and Trademark Office’s proposed changes. The period for public comment on the proposed rulemaking ended in June.

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