The U.S. Patent and Trademark Office (USPTO) recently announced an official Artificial Intelligence Strategy that outlines how the Office plans to address the promise and challenges of artificial intelligence (AI) in its internal operations as well as in the development of intellectual property (IP) policy.  According to information provided in the newly released document, annual filings of AI-related patent applications have increased more than two-fold since 2002 and are up 33% since 2018. Additionally, AI has permeated a wide range of technology sectors with AI-related patent applications appearing in 60% of all the technology subclasses used by the USPTO in 2023.

The initiative outlined in the AI Strategy document seeks to support responsible and inclusive AI innovation, implement AI in furtherance of the USPTO’s mission, and maintain the U.S.’s competitive edge in global innovation. At the same time, USPTO officials say the new AI Strategy mitigates risks and fosters responsible use of artificial intelligence.

Specifically, the AI Strategy document provides a roadmap designed to enhance the agency’s efforts in promoting AI innovation within its operations and the broader intellectual property sector, through five key focus areas:

(1) Advance the development of IP policies that promote inclusive AI innovation and creativity. 
(2) Build best-in-class AI capabilities by investing in computational infrastructure, data resources, and business-driven product development.
(3) Promote the responsible use of AI within the USPTO and across the broader innovation ecosystem. 
(4) Develop AI expertise within the USPTO’s workforce.
(5) Collaborate with other U.S. government agencies, international partners, and the public on shared AI priorities.

With respect to the first focus area, the Strategy document states that:

“As appropriate, the USPTO will advocate for the development of balanced and sound judicial precedents and legislation that promote both AI innovation and respect for IP rights, while not unnecessarily constraining future AI innovation. For example, the USPTO would advocate for judicial positions, consistent with existing legal precedent, that would encourage innovation with respect to issues including AI-generated prior art and AI-assisted inventions.”

The USPTO Strategy document also notes that the rapid advancement of AI technologies could not only impact patent-related policy, including inventorship, subject-matter eligibility, obviousness, enablement, and written description, but also affect “the volume and character of submitted applications.” Some of these topics, as noted below, have been addressed via guidance released by the USPTO this past year.

AI has the potential to not only transform the tools used by Examiners to examine patent applications, but also to redefine the inventive process itself as well as the framework by which inventions are evaluated. For patent holders and attorneys, the release of this strategy signals the USPTO’s commitment to fostering an ecosystem where AI advancements can thrive responsibly, driving innovation and protecting intellectual property.

This announcement caps an active 12-month period for the Office with respect to AI policy and guidance. On February 13, 2024, the Office published inventorship guidance for AI-assisted inventions followed by updated patent eligibility guidance for AI inventions on July 17, 2024. The release of the USPTO’s official AI Strategy plan, along with the prior guidance, is responsive to and in alignment with the Biden-Harris Administration’s October 2023 Executive Order 14110 on the safe and secure development and use of AI. Given that the AI Strategy plan was released during the final week of the Biden-Harris Administration, the degree to which it is implemented will depend on the Trump-Vance Administration. Expect further notices and guidance regarding these topics as this transition occurs.