Embracing AI in intellectual property processes such as freedom-to-operate analysis can reduce the risk of unintentional patent infringement, especially as new technologies shift patent enforcement from historical under-enforcement to heightened salience.
Janet Freilich, an Associate Professor at Fordham Law School, highlights in her article (link to the full article) that patent infringement is common in everyday life, often unknowingly. Many actions, such as using smartphones or Wi-Fi, can potentially infringe on numerous patents. However, historically, most patents are rarely enforced, and patentees often do not pursue infringement claims. This under-enforcement has been crucial to maintaining everyday activities without high transaction costs.
Janet argues that a technological shift is underway, moving away from this under-enforcement and ignorance to salience is caused by new technologies that make it easier to discover and make them easier to enforce. Three case studies are presented to illustrate this shift:
- Analytics software using machine learning and artificial intelligence: This software generates detailed patent landscape reports, providing decision-makers with insights into patent trends. For instance, a report on hydrogen fuel patents can assist companies in finding collaborators and making better investment decisions.
- Automated freedom-to-operate algorithms: These computer programs help identify and design around relevant patents, increasing awareness of patent issues.
- Amazon’s Utility Patent Neutral Evaluation program: Amazon has developed a system to quickly and affordably address patent infringement claims, making it easier for patent holders to assert their rights and remove infringing products.