Innovating under Uncertainty: The Patent-Eligibility of Artificial Intelligence after Alice Corp. v. CLS Bank International

The Law and Economics of Privacy, Personal Data, Artificial Intelligence, and Incomplete Monitoring Research in Law and Economics, Volume 30, 59–81 (2022)

University of Hong Kong Faculty of Law Research Paper No. 2022-24

9 Pages Posted: 23 May 2022

See all articles by Ryan Whalen

Ryan Whalen

The University of Hong Kong - Faculty of Law

Raphael Zingg

Waseda University

Date Written: March 22, 2022

Abstract

Artificial intelligence-related inventions raise complex questions of how to define the boundaries around patentable subject matter. In the United States, many claim that the recent doctrinal developments by the Supreme Court have led to incoherence and excessive uncertainty within the innovation community. In response, policymakers and stakeholders have suggested legislative amendments to address these concerns. We first review these developments, and subsequently use the patent examination record to empirically test the claims of increased uncertainty. We find that, although uncertainty did spike following the Supreme Court’s holding in Alice, it quickly returned to levels comparable to its historic norm. This has implications both for those advocating for legislative changes to the law of eligible subject matter, as well as other jurisdictions considering adopting a test similar to that applied in Alice.

Keywords: Patent Law, Artificial Intelligence, Patentable Subject Matter

JEL Classification: O34, K23

Suggested Citation

Whalen, Ryan and Zingg, Raphael, Innovating under Uncertainty: The Patent-Eligibility of Artificial Intelligence after Alice Corp. v. CLS Bank International (March 22, 2022). The Law and Economics of Privacy, Personal Data, Artificial Intelligence, and Incomplete Monitoring Research in Law and Economics, Volume 30, 59–81 (2022), University of Hong Kong Faculty of Law Research Paper No. 2022-24, Available at SSRN: https://ssrn.com/abstract=4099290 or http://dx.doi.org/10.2139/ssrn.4099290

Ryan Whalen

The University of Hong Kong - Faculty of Law ( email )

Pokfulam Road
Hong Kong, Hong Kong
China

Raphael Zingg (Contact Author)

Waseda University ( email )

1-104 Totsukamachi, Shinjuku-ku
tokyo, 169-8050
Japan

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