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

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.

Citation

Whalen, R. and Zingg, R. (2022), "Innovating under Uncertainty: The Patent-Eligibility of Artificial Intelligence after Alice Corp. v. CLS Bank International", Langenfeld, J., Fagan, F. and Clark, S. (Ed.) The Law and Economics of Privacy, Personal Data, Artificial Intelligence, and Incomplete Monitoring (Research in Law and Economics, Vol. 30), Emerald Publishing Limited, Leeds, pp. 59-81. https://doi.org/10.1108/S0193-589520220000030005