Startups, innovators, and the general public stand to benefit from a patent system that reliably promotes innovation and puts an emphasis on the quality of patents over quantity. With lawmakers taking interest in improving patent quality, technology has a role to play. On June 22, the Senate Committee on the Judiciary held a hearing on how improving patent quality can protect innovations. The hearing revealed that more resources and access to better technology could enhance the ability of examiners in the U.S. Patent and Trademark Office (USPTO) to search for prior art and examine applications. Using technology to improve prior art searching and preparation of patent applications is a relevant practice that expands further than just at the USPTO. Any participant in the patent process has good reasons to consider leveraging technology to help improve patent quality.
High-quality patents are particularly important for startups. They represent valuable assets that can attract investors and enable business partnerships. But unfortunately, startups also face patent assertion entities (PAEs)—otherwise known as patent trolls—who routinely assert patents that cover well-known or widely used concepts. This exposes startups to costly litigation and unnecessary risk. But when examiners and patent applicants cannot access relevant information about prior art, it increases the risk of invalid patents being issued, and in some cases prevents new innovations from reaching the market altogether.
Determining whether a patent claims something known (or in technical jargon, whether any prior art would render a patent invalid) may sound straightforward, but the myriad of data to comb through presents significant challenges. Improving patent quality through artificial intelligence (AI) has been a long-held goal of the USPTO, and it has already adopted various AI tools in the search and classification process. The office acknowledges that this is only “the beginning of a whole new trajectory in how we leverage technology to transform patent and trademark operations for the better.” AI can help patent offices use massive amounts of data to vet applications and resolve questions more efficiently, reducing legal costs and administrative burden.
Leveraging technology like AI can also help startup patent applicants because it can improve their ability to effectively and more affordably perform prior art searches. And there are a number of companies looking to build those tools that improve upon the efficiency of the patent application review process. For example, Patent Quality through Artificial Intelligence (PQAI) is trying to automate the art identification process by analyzing large amounts of publicly accessible information through its new open-source patent search platform. Similarly, Ambercite AI offers an intuitive search platform that finds similar inventions to one or more starting patents without the need for complicated boolean parameters or technical class codes. Tools like these and numerous others can improve the ability of anyone, including startups, to find relevant prior art and can cost less than hiring lawyers to conduct preliminary searches. But especially as the USPTO is “leverag[ing] technology to transform patent [] operations” internally, it should simultaneously be thinking about how to make this technology more accessible to startups, too. There is a public search facility in the PTO’s Alexandria office, and there are resource centers across the country that can put search technology in the hands of innovators. As the USPTO is improving AI models for examiners, it should also keep an eye toward opening access to certain tools more broadly.
There has also been a notable increase in startups utilizing AI-driven software to automate aspects of their business. The patent system reveals one more area where such automation can bring positive change for small businesses and entrepreneurs. Improvements in the efficiency of patent intake and review, as well as decision-making within departments involved with reviewing and interpreting patents, can help reduce the costs associated with applying for and maintaining high-quality U.S. patents.
We applaud Congress for thinking about patent quality and agree that leveraging new technologies in the examination process is an important piece of this puzzle. It’s encouraging to see the USPTO and Congress leading initiatives in that direction. At the same time, startups can be thinking about these tools and how they can help to improve the patent process.
