Key Patent Trends and Priority Shifts in AI Inventions

Artificial intelligence is one of the most important technologies of this era, standing to represent the next “general-purpose” technology like electricity. As AI technology advances rapidly, AI patent activity is experiencing accelerated growth and broad diffusion across industries. A novel Artificial Intelligence Patent Dataset (AIPD), released in July by the U.S. Patent and Trademark Office, identified AI in more than 13.2 million U.S. patents and pre-grant publications, citing an increase of annual AI patent applications by more than double from 2002 to 2018. This surge in AI patenting activity is expected to continue in 2022.

AI technology is complex and spans many different fields. Inventors and patent attorneys often face the challenge of effectively protecting new AI technology development. Much of the public’s attention on patenting AI inventions has centered around the issue of inventorship. The Eastern District of Virginia’s Thaler v. Hirshfeld ruling is the first U.S. court decision in the global dispute over AI inventions, finding that an “AI machine” cannot be an “inventor” under current U.S. patent law. This ruling is currently on appeal at the Federal Circuit.

With the profound explosion in the adoption of AI-based technologies, we can expect to see a priority shift in patenting considerations for AI inventions—one that ensures that patent law’s governance and treatment of AI is comprehensive and adaptive. Rather than directing efforts toward a potential expansion of patent law based on, for example, inventorship, engaging in proactive patent examination procedures that promote assurance in quality and enforceability of patents, applying existing patent laws through the lens of technology, and acting with openness toward new forms of IP protection will minimize disruptions to legal frameworks as well as promote innovation.

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