By Vanessa P. Bailey, Head of Patent Public Policy for Amazon

On November 10, 2023, ChIPS Global Summit featured a panel of distinguished women to discuss the current legislative landscape in intellectual property and technology. The panel was moderated by Cinnamon Rogers, Vice- President of Global Public Policy at Sony Interactive Entertainment and featured Karen Robinson, Vice-President and Associate General Counsel at Adobe, Tara Hairston, Senior Director of Technology, Innovation, and Mobility Policy for Alliance for Automotive Innovation, and Danielle Brown, Senior Director of Legislative Strategy at BSA | The Software Alliance.

Cinnamon launched the discussion directly into the weighty topic of how to navigate the current seemingly divided government. Karen noted that the point of legislation is to drive innovation, so it is her job to help Congress understand the technology and the impact that the legislation will have. Tara noted that her job is focused on helping to educate Congress on the issues, consensus-building, and meaningful engagement in bi-directional conversations. Danielle’s job focuses on keeping a finger on the pulse of legislation that might move through Congress and being a problem-solver by matching opportunities with policy-maker priorities. All of the panelists seemed to think that the division in the U.S. government was not a unsurmountable hurdle in achieving legislation that advances innovation.

In fact, all of the panelists agreed that Artificial Intelligence (“A.I.”) has caught the attention of policy-makers on Capitol Hill and could be the next big substantive legislation. Danielle likened the Congressional interest in A.I. to “A.I. Everything Everywhere All at Once.” She explained that the key areas of A.I. Congressional focus are on deep fakes, transparency and disclosure, investment in workforce, and bias and responsible A.I. Karen noted that there is a conflict in that larger datasets are needed to reduce bias in A.I. but that regulators are making it increasingly difficult to gather data or scrape the internet for data. This conflict leads to a need for guardrails from the government for businesses to be good corporate citizens. On October 30, President Joe Biden issued the Executive Order on Safe, Secure, and Trustworthy Artificial Intelligence (“the Executive Order”). The Executive Order recognizes that A.I. is already being used and tries to identify areas where more regulation is needed. All of the panelists welcomed the Executive Order as a great first step, but some felt that more work needs to be done.

Karen touted a new Federal Anti-Impersonation Right (the “FAIR” Act) to create a federal right of action for an artist whose likeness has been intentionally and commercially impersonated using AI as a welcome legislation. She noted that an artist can tag their work with a “do not train” tag that follows the metadata (also known as content credentials). She welcomed legislation that prohibits the stripping of that metadata. Karen agreed that A.I. deep fakes are a big issue that Congress must tackle. Danielle noted that there were over 200 A.I. bills in the last year and that state bills could be models for federal legislation. The state bills focused mainly on deep fakes and government use of A.I., said Danielle. All of the panelists agreed that there is a need for federal action because the states’ legislation would only be patchwork. Tara noted that substantive A.I. legislation can also move with other non-A.I. bills like a privacy bill. Karen warned of the past inaction in privacy that resulted in the General Data Protection Regulation (“GDPR”) as a default. Therefore, she urged Congress to proactively make substantive A.I. legislation.

Next, the panelists discussed section 101 of the Patent Act that covers patent subject-matter eligibility. Karen noted that creating more section 101 legislation will not create more clarity because terms from the new legislation will inevitably be litigated to determine their meaning. Karen noted that, in fact, it is not difficult to obtain A.I. patents. Therefore, new legislation allegedly to help obtain more A.I. patents, is unwarranted.

Regarding standard-essential patents (also known as SEPs), Tara noted that one of big problems in SEP licensing is that not all who want a license are able to obtain a license. Some SEP holders are not granting licenses at the component level. They are only granting a license to the end product manufacturer in an attempt to obtain a license fee on the entire end product. This is a problem and goes against U.S. jurisprudence. For example, the SEP holder of one patent (out of thousands or even tens of thousands of patents) on the 5G wireless communication standard may try to extract a license fee on the entire price of the car even though there are tens of thousands of other patents involved in the car and parts of the car that are not even covered by patents. Tara noted that this allows the SEP holder to extract a license fee on items that they did not invent which must not be allowed.

The panelists also looked into post-grant proceedings at the U.S. Patent Trial and Appeals Board. Tara urged Congress (and the U.S. Patent and Trademark Office (U.S.P.T.O.)) not to make changes to hinder the current system of inter partes review (“IPR”) proceedings. She noted that U.S.P.T.O. generally grants over 380,000 patents a year, so there will always be a need to invalidate some of the patents that slipped through the system and were mistakenly granted. Karen also noted that the current IPR system works well and urged not to make it harder to invalidate patents that should not have been granted.

This energetic panel ended with advice to other women on how to be great advocates on Capitol Hill. Danielle noted that you need to be able to cut through the noise and simplify the issues. Tara advised to do the work ahead of time before you need it, so that you are always prepared. And Karen counseled to be very knowledgeable on the substance—know more, be better, be an expert.

U.S. legislation impacts innovation for all so keep a watchful eye and get involved!