Academic journal article Texas Law Review

The USPTO's Sisyphean Plan: Increasing Manpower Will Not Match Artificial Intelligence's Inventive Capabilities *

Academic journal article Texas Law Review

The USPTO's Sisyphean Plan: Increasing Manpower Will Not Match Artificial Intelligence's Inventive Capabilities *

Article excerpt

Introduction

Thomas Edison, Alexander Graham Bell, and Artificial Intelligence (AI) systems have all changed the world through inventing and innovating. Edison and Bell amassed large patent portfolios, but shockingly, the United States Patent and Trademark Office (USPTO) has issued a growing number of patents for inventions developed by AI.2 In addition, patent applications on AI systems are "growing exponentially."3 A combination of these AI systems, which are capable of inventing, and the exponential increase in their numbers will lead to substantially more patent applications. AI's innovative capabilities have never before had as great an opportunity to directly affect the U.S. and world economies, and its capabilities will only continue to grow.

Additionally, it should come as no surprise that this paradigm-shifting technology is experiencing unprecedented investment. Businesses already depend on artificial intelligence in a diverse array of operations.4 Multiple billionaires are investing at record levels in AI technologies and startups.5 For example, Mark Cuban, renowned billionaire, Shark Tank investor, and owner of the Dallas Mavericks, predicts "the world's first trillionaires will actually be entrepreneurs working with artificial intelligence."6 These two factors-Al's innovative capability and the market's investment in AI-have set the stage for monumental innovation.

The U.S. government must prepare for this enhanced innovation, and there are already efforts underway. In 2016, for example, President Obama's administration announced the formation of a new Subcommittee within the National Science and Technology Council (NSTC) to specialize in Machine Learning and Artificial Intelligence to help coordinate federal activity in relation to AI.7 Considering the current debate on implementing, developing, and researching lethal autonomous weapons systems (LAWS)8 and regulating en masse implementation of autonomous vehicles on our highways,9 it is clear that a Presidential Administration must prepare for AI.

This Note focuses on a unique agency of the Executive Branch, specifically the U.S. agency responsible for fulfilling Article I, Section 8, Clause 8 of the Constitution: "To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries."10 This is, of course, the USPTO. On the agency's website, the USPTO's "About Us" page states:

The strength and vitality of the U.S. economy depends directly on effective mechanisms that protect new ideas and investments in innovation and creativity. The continued demand for patents and trademarks underscores the ingenuity of American inventors and entrepreneurs. The USPTO is at the cutting edge of the nation 's technological progress and achievement}1

Because the USPTO is at the "cutting edge" of this "nation's technological progress and achievement" and because the "strength and vitality of the U.S. economy" is directly affected by the USPTO's mechanisms, the next pertinent question becomes: How is the USPTO planning for AI?

This Note is divided into four parts. Part I discusses major problems faced by the USPTO-a patent application backlog, issues with patent quality, and growing pains from a complete overhaul of the patent system- that will be exacerbated by AI-driven innovation and why these issues have severe repercussions for the global economy. Part II discusses the USPTO's plans and mechanisms to handle these issues and why those same plans are ineffective to handle a growing amount of unanticipated, AI-driven patent applications. Part III examines other proposals for how the USPTO should address AI-driven innovation and explains why these recommendations are ill-advised. Part IV provides three recommendations for the USPTO to plan for AI-driven innovation: (1) involve the public in these discussions so Congress can act; (2) encourage Congress to fund research for integrating AI into the USPTO as a pilot program for other federal agencies; and (3) in the meantime, urge the USPTO to self-fund AI research and development using the new fee-setting authority it received from the Leahy-Smith America Invents Act (AIA). …

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