Director Kathi Vidal of the United States Patent and Trademark Office (USPTO) recently gave some basic guidelines when discussing the use of AI in legal proceedings at the USPTO.
First, "any paper submitted to the USPTO under signature must be reviewed by the person presenting the paper." Why would anyone not do this? With the ease of AI tools, however, there is the concern that the "person presenting the paper" will not check the case citations.
Second, "Practitioners are also prohibited from asserting or controverting an issue in a proceeding unless there is a basis in law or fact for doing so." Again, very basic. However, AI tools (including generative AI bots) could misstate facts or law and cause "unnecessary delay or needless increase in the cost of any proceeding before the Office." Are people really doing this?
Third, sanctions can be imposed regardless of how a submission is prepared. "AI made me do it!" is not an excuse.
To ensure AI is not misused – or left unchecked – in practice before the Patent Trial and Appeal Board (PTAB) and Trademark Trial and Appeal Board (TTAB), today Kathi Vidal, Under Secretary of Commerce for Intellectual Property and Director of the USPTO, issued guidance on "The Applicability of Existing Regulations as to Party and Practitioner Misconduct Related to the Use of Artificial Intelligence." The guidance clarifies existing rules and policies and discusses how to apply them when AI is used in the drafting of submissions to these Boards.
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