USPTO Embracing New Possibilities with AI

Faegre Drinker Biddle & Reath LLP

Faegre Drinker Biddle & Reath LLP

While the legal industry is typically not known as being cutting edge when it comes to adopting innovative technologies, the U.S. Patent and Trademark Office (USPTO) is taking big steps forward on seeing whether artificial intelligence (AI) may be used during patent and trademark examination to create greater efficiency and consistency with respect to certain routine, high-volume tasks. AI, a technology that refers to “smart” machines that simulate human intelligence, is being examined in many industries to potentially eliminate redundant and routine tasks, and the USPTO is trying to determine whether AI is right for it. Does this mean that future USPTO examiners will be more like C3PO? No. But AI could handle more-routine tasks, which would allow examiners to focus on more-substantive matters related to the examination of trademark and patent filings.

Within the past few years, the USPTO has undertaken a comprehensive strategy to identify AI solutions that may serve to create a hybrid workplace in which certain innovative technologies could help to support existing USPTO examiners. At this stage, the USPTO is conducting market research as well as some initial testing of potential solutions.

With respect to trademarks, the USPTO recently completed a market research study that focused on the AI capabilities in connection with two specific areas. One area focused on checking the acceptability of proposed descriptions of goods and services against the Trademarks ID Manual. The second area focused on trademark images and whether an AI solution would be able to suggest the correct assignment of the applicable design codes to specific images. After the research was completed, the USPTO developed AI prototypes to address both of these tasks. An initial beta test of these prototypes began in November of 2020 with ten participants. The USPTO now anticipates a larger beta test of these prototypes later this year.

As many practitioners have noticed, there appears to have been a substantial increase in the number of fake specimens submitted to the USPTO to obtain either registrations or renewals that clutter the registry. Beginning in December of 2020, the USPTO has been testing an AI tool that is supposed to detect specimens that are merely mock-ups or that have been digitally altered and/or manipulated. Further, with an expected beta test later this year, the USPTO anticipates using another prototype to handle frequently answered questions on the USPTO website. Finally, on the patent side of the house, the USPTO is incorporating some AI solutions into the areas of searching and classification.

Based on the activities and testing to date, the USPTO seems well underway to permanently integrating AI technology within the daily tasks of its workforce. As the technology continues to improve and the USPTO better understands how these innovative solutions may be used, it seems that the USPTO is well-positioned to evolve with the technology to improve efficiency and productivity.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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