USA Trends and Developments Contributed by: Steven Lieberman and Nicole (Nikki) DeAbrantes, Rothwell, Figg, Ernst & Manbeck PC
indicia of how U.S. courts are dealing with con- cepts such as patent eligibility (abstractness) in the context of AI-related systems. Parties and patent professionals should monitor the pro- gress of these lawsuits as any issued decisions may provide important insights on how district courts will interpret and apply patent principles to AI-related inventions moving forward. While there has been a rise in the number of patent infringement lawsuits involving AI-related inventions, that number pales in comparison to the number of AI-related copyright infringement actions. For example, at the end of last year, The New York Times filed a federal lawsuit against Microsoft Corp. and OpenAI for copyright infringement and trademark dilution, alleging that OpenAI used millions of articles published by The New York Times to train automated chat- bots that compete with the New York Times as a source for reliable information. See The New York Times v Microsoft Corp ., et al. No. 23-cv- 11195, Dkt. 1 (S.D.N.Y. Dec. 27, 2023). That lawsuit was one of many copyright-related lawsuits filed in the year against companies such as Google, Perplexity AI, OpenAI, Microsoft and Meta over the use of their respective genera- tive AI platforms. See, for example, The Daily News, LP v Microsoft Corp ., et al., No. 24-3285 (S.D.N.Y. 2024); Zhang v Google LLC et al., No. 24-cv-2531, Dkt. 1 (N.D. Cal. 26 April 2024) (alleging copyright infringement against Google and Alphabet, Inc. for copying the plaintiffs’ cop- yrighted images to train an AI powered image generator called Imagen); see also Dow Jones & Co., Inc., v Perplexity AI , Inc., No. 24-cv-7984 (S.D.N.Y. 11 December 2024) (asserting claims for copyright infringement, false designation of origin and trademark dilution where Perplexity allegedly scraped copyrighted content from the news outlets).
The low number of patent infringement cases being filed thus far may be a result of parties pri- oritising other forms of intellectual property pro- tection, such as copyrights and trade secrets, over patents. Due to the uncertainties surround- ing the patentability of certain AI-related inven- tions, parties may find trade secret protections more advantageous because those protections can attach to information and concepts that historically have not been patentable, such as mathematical concepts or data used to train AI platforms. Parties may also be opting not to file patent infringement lawsuits because of the challenges they face in investigating and proving patent infringement. In our view, patent infringement lawsuits in this area will become more prevalent over the next few years as parties continue to build their AI- related patent portfolios. Thus, as AI technology continues to progress and parties develop new ways for tracking AI usage, patentees should work closely with their counsel to determine ways for protecting and enforcing their rights. Design Patents – Out With the Old Obviousness Standard and in With the New This year, in a landmark en banc decision, LKQ Corporation v GM Global Technology Operations LLC , 102 F.4th 1280 (Fed. Cir. 2024), the U.S. Court of Appeals for the Federal Circuit adopt- ed a new approach for assessing obviousness of design patents under 35 U.S.C. § 103, with the intention that the approach be more flexible and consistent with the standard applied to util- ity patents. This issue arose on appeal from an inter partes review proceeding where the Patent Trial and Appeal Board (PTAB) upheld GM’s design pat- ent for a vehicle’s front fender under the origi- nal obviousness standard. LKQ Corp. argued
590 CHAMBERS.COM
Powered by FlippingBook