On January 14, 2025, the U.S. Patent and Trademark Office (USPTO) issued a policy document regarding the 2025 Artificial Intelligence Strategy, which contains the vision for the use and development of AI technology. Due to constant change in the environment concerning USPTO AI policy, it is important for stakeholders to understand what the agency will do next and how this will impact patent strategy going forward. We outline below some key features of current and proposed USPTO AI initiatives along with possible implications.
The Strategic Plan for AI by USPTO.
The USPTO's AI Strategy "unlocking America's potential by using AI to enhance and enlarge U.S. innovation, inclusive capitalism, and global competitiveness." The USPTO describes its "AI Mission" as: "promoting the research, development, and commercialization of AI within the domestic and global economies; utilizing AI in a responsible and effective way to support our staff, improve operations, and provide value to stakeholders; and empowering ongoing and future innovation and investment through data and research."
The USPTO AI Strategy represents the agency's first large step toward describing the burdens and goals it faces in an environment where AI plays such an important role. "Annual filings of AI-related patent applications have more than doubled since 2002 and are up 33% since 2018 alone," noted the agency. Acting Director Derrick Brent pointed out that "the USPTO has a duty to promote, empower, and protect innovation" and that "[d]eveloping a strategy to unleash the power of AI while mitigating risks gives a pathway to support innovation and intellectual property." It brings out the priority of the USPTO where AI meets policy, technology, and research. The report details what technologies will be used in the agency's operations categorized into five main areas of focus which are captured below.
Priority 1: Improving the formulation of intellectual property policies that encourage inclusive innovation and creativity in artificial intelligence.
In support of this priority, the USPTO will continue to issue policies and recommendations that encourage inclusive AI innovation and development, as per the National Strategy for Inclusive Innovation. This strategy has a broader goal which specifically includes “increasing participation in STEM and innovation among youth and those from historically underrepresented and under-resourced communities.” To inform these recommendations, research and insights are solicited from AI researchers, practitioners, and various stakeholders concerning patents, trademarks, and copyrights to ultimately help improve inclusion in the AI innovation ecosystem.
Focus area 2: Build Best-in-Class AI Capabilities Invest in Computational Infrastructure, Data Assets, and Product Development Driven by Business Needs.
This emphasizes the USPTO focus on the enhancement of computing and data resources towards further supporting AI development for more complex uses. This also entails building and improving data and research initiatives, including Open Data, through AI solutions. For example, by June 2024, "USPTO patent examiners will have leveraged AI-powered features such as More-Like-This-Document and Similarity Search across more than 480,000 cases." These tools provide examiners with a powerful way to supplement traditional keyword searches to help them quickly find prior art documents that may be relevant to the patentability of a particular claim. The expectation in the implementation of such AI tools is likely to increase in the USPTO henceforth because it has expressed an intention to "hire people with experience and knowledge in AI" and train users in the responsible and effective use of AI technologies. Gaining knowledge of these tools will help professionals predict how reviewers will judge their applications. Stakeholders will be able to conduct prior art searches using the same or similar tools, which will help make strategic decisions concerning disclosures and contribute to a more efficient prosecution with the USPTO.
Focus area 3: Foster the responsible use of AI at the USPTO and across the broader innovation landscape.
In response to growing use of AI and to sustain public trust, the agency will focus on value-based product development risk mitigation and stakeholder communication. This underscores the careful and measured approach the agency takes regarding the adoption of AI technology.
In this aspect, the guidance practitioners received on matters relating to AI from USPTO was due to the fact that AI-related technology qualifies for subject matter and the concept of AI-augmented inventorship. This is after the decision by the Federal Circuit Court of Appeals, which bars the inclusion of AI as an inventor in any patent, and thus explicit ethical guidelines from USPTO compel patent attorneys and agents to take reasonable efforts to assess the role of AI in the creation of subject matter for a patent application. In regard to the use of AI by patent prosecutors, USPTO has clarified that generative AI tools can be used for creating documents that will be filed with USPTO; however, there is no automatic obligation to disclose the existence of such AI tools. However, practitioners using generative AI should ensure that their submission is correct, including checking any cited legal precedents or scientific evidence. Some attorneys have been publicly disciplined for submitting court briefs with incorrect legal citations generated by generative AI. Lawyers who submit AI-generated content to the USPTO without verifying the accuracy of citations may face similar consequences.
Focus area 4: Improve AI awareness among the employees of USPTO.
This includes increasing knowledge about AI among its current workforce by "hiring staff with expertise and competencies in AI," along with holding internal seminars on AI technologies for its employees and judges of the Patent Trial and Appeal Board. These training programs will inculcate responsible and effective use of A! tools.
Focus area 5: Collaborate with other U.S. government agencies, international allies, and the public toward common goals in AI.
The USPTO has launched a partnership pathway to AI and emerging technologies, which we call the AI/ET Partnership. More than 4,000 people will have participated in events by May 2024 related to the AI/ET Partnership. These initiatives are designed to elevate existing collaborations and find new ways to support government AI goals in the U.S. including directives established pursuant to executive orders, the National AI Initiative, and the National AI R&D Strategic Plan.
The USPTO wants to work with international partners on AI issues that have an impact on the global IP framework because "AI and its IP implications are issues of great importance at the global level." New challenges in IP through AI arise at the same time across many jurisdictions. Moreover, the agency reiterates its efforts in directing how the U.S. is represented in broader AI efforts, such as the G7's Hiroshima AI Process, to ensure that interests relating to IP in the U.S.—including those of content creators, system developers, and end users—are provided for internationally.
