As the prevalence of artificial intelligence has grown significantly over the last few years, the United States Patent and Trademark Office (USPTO) has taken measured steps toward its implementation within the intellectual property ecosystem. The USPTO has consistently recognized the tremendous potential for artificial intelligence “to support the agency’s mission,” yet it has exercised extreme restraint as it continues to evaluate its implementation among intellectual property practitioners, inventors, and the agency itself.

For example, in October 2020, the USPTO published its report titled Public Views on Artificial Intelligence and Intellectual Property Policy, marking one of the agency’s earliest inquiries into the intersection of artificial intelligence and the existing intellectual property framework, as well as the “reliability of IP rights for emerging technologies, such as AI.” Similarly, the USPTO previously established an Artificial Intelligence and Emerging Technologies Partnership “to gather public feedback through a series of sessions on topics related to AI and innovation[.]” Additionally, efforts by the USPTO and several other governmental agencies preceded and supported President Biden’s October 30, 2023 Executive Order titled “Safe, Secure, and Trustworthy Development and Use of Artificial Intelligence,” which encapsulated the federal government’s perspective regarding the competing advantages and risks associated with the use of artificial intelligence:

“Artificial intelligence (AI) holds extraordinary potential for both promise and peril. Responsible AI use has the potential to help solve urgent challenges while making our world more prosperous, productive, innovative, and secure. At the same time, irresponsible use could exacerbate societal harms such as fraud, discrimination, bias, and disinformation; displace and disempower workers; stifle competition; and pose risks to national security.”

The landscape surrounding the federal government’s and the USPTO’s implementation of artificial intelligence continues to evolve; however, the principles guiding this evolution remain consistent. Since President Biden’s Executive Order, the USPTO has issued ongoing guidance emphasizing its continued concern with the reliability, accuracy, and trustworthiness of AI-based programs. For instance, the USPTO has repeatedly issued guidance—at times, warnings—regarding practitioners’ use of AI tools in proceedings before the Patent Trial and Appeal Board (“PTAB”) and Trademark Trial and Appeal Board (“TTAB”). These changes align not only with the agency’s prior findings and actions to combat risks posed by artificial intelligence to the inventive process but also with methods of addressing growing concern regarding the use of AI within the legal community, such as the American Bar Association’s initiatives “to provide the legal community with insights for developing and using AI in a trustworthy and responsible manner.”

The USPTO’s recent implementation of AI-based patent examination tools, “SimSearch” “DesignVision,” reflects both the agency’s holistic assessment of AI’s benefits and risks and the agency’s intent to maintain safeguards while enhancing its examination process through use of AI. For example, as an enhancement to the existing Patent-End-to-End (PE2E) search function, SimSearch allows examiners to input selected portions of a pending application as a query to facilitate a prior art searches amongst both “domestic and foreign patent documents.” Similarly, DesignVision allows examiners to “facilitate[e] prior art searching using images as a query” to simultaneously search multiple foreign and domestic registries via a single search interface.

SimSearch and DesignVision represent some of the USPTO’s initial efforts to tailor artificial intelligence tools for internal use, while also advancing its broader goal of preserving the United States’ position as a global leader of innovation. However, as in many industries, significant concerns remain regarding the reliability of work product generated by or reliant on AI-based programs. The USPTO’s implementation of SimSearch and DesignVision, along with its internal guidance on their use of such programs during the examination process, reflects this persistent concern, as highlighted in recent USPTO announcements:

While this consistency between the DesignVision and SimSearch press releases may appear minor, it reflects the USPTO’s clear stance regarding artificial intelligence. Although the implementation of these tools contributes the agency’s goal to “harness AI to support the agency’s mission,” their use—i.e., to only “augment” rather than replace examiner’s efforts—demonstrates the USPTO’s core belief that, in its current form, artificial intelligence cannot substitute the integrity, reliability, and judgement of its human workforce. Through this approach, the USPTO has reaffirmed its continued commitment to exercising caution in adopting AI within the intellectual property ecosystem.

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