Limits of Using Artificial Intelligence and GPT-3 in Patent Prosecution

54 Texas Tech Law Review 255 (2022)

WVU College of Law Research Paper No. 2021-014

20 Pages Posted: 9 Aug 2021 Last revised: 21 Sep 2022

See all articles by S. Sean Tu

S. Sean Tu

West Virginia University College of Law; Program On Regulation, Therapeutics, And Law (PORTAL), Brigham and Women's Hospital; Georgetown University - The O'Neill Institute for National and Global Health Law

Amy Cyphert

West Virginia University - College of Law

Sam Perl

Carnegie Mellon University

Date Written: August 4, 2021

Abstract

The underlying basis for patent law is a quid pro quo: the inventor discloses how to make and use the invention and in exchange for that disclosure, the public gives the inventor an exclusive right to practice that invention, for a limited time. Pervasive use of Artificial Intelligence (AI) technologies such as Generative Pre-trained Transformer 3 (GPT-3) and other similar AI tools may shift the balance of power envisioned in the patent system away from the public and towards the inventor. Specifically, GPT-3 and other AI products may allow inventors to claim significantly more in their patent than they originally invented, thus inequitably enlarging their exclusive rights without benefiting the public. Patent law has built in tools such as the enablement, utility and definiteness requirements to help limit the possible unjustified expansion of patent rights caused by pervasive use of AI. Additionally, if AI wholly disrupts the quid pro quo established by Congress, then patent law may have to adjust by moving from a peripheral claiming approach back to central claiming approach.

Keywords: patent, artificial intelligence, GPT-3, patent prosecution, utility, enablement

Suggested Citation

Tu, Shine (Sean) and Cyphert, Amy and Perl, Sam, Limits of Using Artificial Intelligence and GPT-3 in Patent Prosecution (August 4, 2021). 54 Texas Tech Law Review 255 (2022), WVU College of Law Research Paper No. 2021-014, Available at SSRN: https://ssrn.com/abstract=3899388 or http://dx.doi.org/10.2139/ssrn.3899388

Shine (Sean) Tu (Contact Author)

West Virginia University College of Law ( email )

101 Law School Drive
Morgantown, WV West Virginia 26506
United States

HOME PAGE: http://https://www.law.wvu.edu/faculty-staff/faculty/s-sean-tu

Program On Regulation, Therapeutics, And Law (PORTAL), Brigham and Women's Hospital ( email )

1620 Tremont St.
Suite 3012
Boston, MA 02120
United States

HOME PAGE: http://https://www.portalresearch.org/sean-tu.html

Georgetown University - The O'Neill Institute for National and Global Health Law ( email )

600 New Jersey Avenue, NW
Washington, DC 20001
United States

HOME PAGE: http://https://oneill.law.georgetown.edu/experts/s-sean-tu/

Amy Cyphert

West Virginia University - College of Law ( email )

101 Law School Drive
Morgantown, WV West Virginia 26506
United States

Sam Perl

Carnegie Mellon University

Pittsburgh, PA 15213-3890
United States

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