Artificial Intelligence (AI) and the Internet of Things (IoT) have greatly impacted the practice of intellectual property law in recent years. The implications of these emerging technologies, recent Supreme Court cases, and other issues facing intellectual property practitioners were discussed in the recent Legal Summit Series “Hey Alexa, Can You Get a Patent or Register for a Copyright?” presented online by Barry Herman from Womble Bond Dickinson LLP, Greg Stone from Whiteford, Taylor, Preston, LLP and Donna Thomas from Astrachan Gunst Thomas, P.C..
The faculty began by discussing the implications of artificial intelligence, the internet of things, and other pervasive technology for intellectual property law. The internet of things allows devices to communicate with each other via the internet without human interaction, and the information collected by these devices allows companies to analyze customer preferences and data.
There are billions of interconnected devices throughout the world, and many of them involve at least some component of artificial intelligence. This has created a tremendous market for developers of innovative technology, and the potential to establish exclusivity, as long as they take the proper steps to protect their intellectual property. Developers may run into issues if it is determined that they are trying to patent abstract ideas, but what constitutes an “abstract idea” has not clearly been defined by the courts. There are also concerns about whether technology created by artificial intelligence is patentable or protected under copyright laws.
The panel then discussed the United States Supreme Court’s apparent fascination with copyright law, which resulted in three rulings on copyright cases and three on trademark matters in the past year. Highlights include United States PTO v. Booking.com B.V., in which the Court rejected the U.S. Patent and Trademark Office’s argument that the combination of a generic term with “.com” is necessarily generic. The Court explained that consumer perception is key, and if the combined phrase is identified as a brand offering goods and services by the public, it is capable of trademark protection.
In another recent holding, Romag Fasteners, Inc. v. Fossil Grp., Inc., the court held that willfulness is not a prerequisite to an award of profits under 15 USC §1117(a) for a trademark infringement claim under 15 USC §1125(a) that “a trademark defendant’s mental state is a highly important consideration in determining whether an award of profits is appropriate.” Finally, the speakers discussed Allen v. Cooper, a case in which the Supreme Court affirmed that Congress does not have the authority to abrogate the States’ sovereign immunity from copyright infringement suits under the Copy Remedy Clarification Act, and Georgia v. Public.Resource.Org, where the Court ruled that the Official Code of Georgia Annotated cannot be copyrighted as it falls under the Government Edicts Doctrine.
Recently enacted changes in the law are likely to impact trademark infringement cases as well. Specifically, the Trademark Modernization Act which was signed into law and goes into effect next year amends the Lanham Act by restoring the rebuttable presumption of irreparable harm in a trademark case. The Trademark Modernization Act enacts other important changes as well, many of which have to do with removing unused trademarks from the registry.
The discussion then moved to patent attacks at the Patent Trademark Office (PTO). There are four types of proceedings at the PTO: derivation; covered business methods; post-grant reviews (PGRs); and, Inter Parties Review (IPRs). Derivation is essentially a substitution for interference proceedings, and both derivation and covered business methods actions, which are used to attack business method patents, rarely occur. PGRs and IPRs are the most common types of proceedings, with IPRs comprising the vast majority of petitions filed at the PTO. PGRs must be filed within nine months of when a patent is granted, while IPRs can be filed at any time. In PGRs a party can assert any invalidity defense, while IPRs can only be based on prior art.
The presentation ended with an analysis of the latest trends and decisions from the Patent Trial and Appeal Board (PTAB) concerning post-grant review proceedings. Presently, the number of patents losing claims is relatively small compared to the number of patents issued. This is because the PTAB has made a number of changes to ensure a fair and equitable process, in an effort to reform the PTAB’s reputation as a “death squad killing property rights.”