Impact of the Proliferation of AI on Prior Art and PHOSITA Listening Session

Director Todd Hopfinger spoke during the “Listening Session 2” panel at the “Impact of the Proliferation of AI on Prior Art and PHOSITA Listening Session” event hosted by the USPTO. Todd addressed the USPTO regarding their Request for Comments on the impact of artificial intelligence (AI) on prior art, the knowledge of a person having ordinary skill in the art (PHOSITA), and determinations of patentability made in view of the foregoing. He highlighted three key questions raised in the Request for Comments:

• How should we handle the large volume of AI-generated prior art and its effects on patent examination?
• Is the presumption of enablement for prior art appropriate for AI disclosures?
• How does AI-generated prior art influence the assessment of obviousness under 35 U.S.C. § 103 and the evaluation of a PHOSITA?

Todd also stressed that as the USPTO considers these issues and others, it is important to:

1. Look to the past for insights on crafting guidance, such as the introduction of electronic patent databases, which changed how patent offices defined prior art and assessed obviousness, necessitating additional training and resources for patent attorneys and examiners.
2. Incorporate empirical data into the guidance-making process.
3. Remember that the primary goal of the patent system is to encourage innovation by rewarding truly novel and non-obvious inventions.

Event Overview

The United States Patent and Trademark Office (USPTO) plays an important role in incentivizing and protecting innovation, including innovation enabled by artificial intelligence (AI), to ensure continued U.S. leadership in AI and other emerging technologies (ET).

On April 30, 2024, the USPTO published a Federal Register Notice requesting comments regarding the Impact of the Proliferation of Artificial Intelligence (AI) on Prior Art, the Knowledge of a Person Having Ordinary Skill in the Art (PHOSITA), and Determinations of Patentability Made in View of the Foregoing. The purpose of the listening session was to obtain public input from stakeholders on the impact of the proliferation of AI on prior art and PHOSITA, as set forth in the questions presented in the Federal Register Notice of April 30, 2024.