USPTO Requests Comments on AI and Prior Art
Summary
On April 30, 2024, the United States Patent and Trademark Office (USPTO) published a Request for Comment (RFC) on the impact of the proliferation of AI on prior art, the knowledge of a person having ordinary skill in the art (PHOSITA), and determinations of patentability. The USPTO is seeking comments on the following and is also accepting related comments:
• The Impact of AI on Prior Art: Whether a prior art disclosure be authored by humans; how non-human authorship affects availability of prior art; what types of AI-generated disclosures would be pertinent to patentability determinations made by the USPTO; and how are such disclosures are currently being made available to the public.
• The Impact of AI on a PHOSITA: Whether the term “person” in the PHOSITA assessment requires that the “person” is a natural person; how the availability of AI as a tool affects the level of skill in the art; and how the USPTO should determine which AI tools are in common use.
• The Implications of AI That Could Require Updated Examination Guidance and/or Legislative Change: what guidance from the USPTO on the impact of AI on prior art would be helpful and other ways in which the proliferation of AI impacts patentability determinations made by the USPTO.
