The Road Ahead: The USPTO Launches Five-Part Artificial Intelligence Strategy

The U.S. Patent and Trademark Office (USPTO) debuted its 2025 Artificial Intelligence Strategy (AI Strategy) policy on Jan. 14, 2025, outlining its vision for using and promoting the development of artificial intelligence (AI) technology.^[1] In light of the evolving nature of the USPTO’s AI policies, it is important for stakeholders to understand the agency’s planned initiatives and how they may impact patent strategy going forward. We provide below an overview of the key aspects and potential impact of the USPTO’s AI initiatives.

The USPTO’s AI Strategic Plan

The USPTO’s AI Strategy is intended to “unleash[] America’s potential through the adoption of AI to drive and scale U.S. innovation, inclusive capitalism, and global competitiveness.”^[2] The USPTO describes its “AI Mission” as aiming to “foster the research, development, and commercialization of AI in the domestic and global economy”; “leverage AI effectively and responsibly to empower our staff, optimize our operations, and deliver value to our stakeholders”; and “[e]mpower current and future innovation and investment in the same through data and research.”^[3]

The USPTO’s AI Strategy is the first major effort from the USPTO to describe the challenges and goals it faces in operating in a world where AI will have rapidly increasing importance. The USPTO reports that “annual filings of AI-related patent applications have increased more than two-fold since 2002 and are up 33% since 2018 alone.”^[4] As Acting Director Derrick Brent explained, the USPTO has “a responsibility to promote, empower, and protect innovation,” and “[d]eveloping a strategy to unleash the power of AI while mitigating risks provides a framework to advance innovation and intellectual property.”^[5] The report defines the USPTO’s priorities when it comes to the intersection of AI and policy, technology and research and outlines the technologies the USPTO will leverage in its practice, broken down into five focus areas, summarized below.

Focus area 1: Advancing the development of IP policies that promote inclusive AI innovation and creativity

As part of this focus area, the USPTO will continue to issue policies and recommendations to promote inclusive AI innovation and development as outlined in its National Strategy for Inclusive Innovation, which specifically seeks to “increas[e] participation in STEM and innovation among youth and those from historically underrepresented and under-resourced communities.”^[6] This strategy aims to leverage research and feedback from AI researchers, practitioners and other stakeholders in issuing such recommendations across patents, trademarks and copyrights, with a final goal to encourage inclusion in the AI innovation ecosystem.

Focus area 2: Build best-in-class AI capabilities by investing in computational infrastructure, data resources and business-driven product development

This focus area highlights the USPTO’s commitment to increasing its usage of computing and data resources to enable AI for increasingly complex use cases. Notably, the USPTO plans to leverage and improve its existing data and research programs, such as its Open Data program, by incorporating AI solutions. For example, as of June 2024, “nearly 80% of USPTO patent examiners had used AI-powered features such as More-Like-This-Document and Similarity Search across over 480,000 cases.”^[7] These features provide examiners with a powerful tool to supplement traditional, keyword-based search methods, helping examiners efficiently locate prior art documents that may pertain to a given application’s patentability. And the anticipated use of these AI tools will only increase as the USPTO plans to “recruit personnel with AI experience and expertise” and provide user-oriented training on the effective and responsible use of AI tools. By familiarizing themselves with these technologies, practitioners will be better able to anticipate how examiners will review their applications. Adopting the same or similar tools will enable stakeholders to conduct prior art searches that are more likely to be consistent with the searches conducted by examiners, leading to better strategic decisions for disclosures and more streamlined prosecution with the USPTO.

Focus area 3: Promote the responsible use of AI within the USPTO and across the broader innovation ecosystem

In order to maintain the trust of the general public amid increased usage of AI, the USPTO intends to focus on value-aligned product development, risk mitigation and transparent stakeholder communication. This reflects the USPTO’s somewhat cautious and conservative approach to adopting AI technology.

Along these lines, the USPTO has issued guidance to practitioners on several AI-related topics. This guidance addresses the subject matter eligibility of AI-related technology and AI-augmented inventorship.^[8] In view of the Federal Circuit Court of Appeals’ ruling that AI cannot be named as an inventor on a patent, USPTO ethical rules require patent attorneys and agents to make reasonable efforts to assess the role AI has played in the conception of the subject matter of patent applications.^[9] With respect to the usage of AI by those prosecuting patents, the USPTO reiterated that it does not prohibit using generative AI tools in drafting documents for submission to the USPTO and that there is no obligation per se to disclose that AI tools were used to generate such documents. Practitioners using generative AI should take care to ensure the accuracy of their submissions, including through verification of any citations to legal precedent or scientific evidence. There have been several notorious cases where attorneys have been disciplined for submitting briefs to courts containing inaccurate legal citations that were “hallucinated” by generative AI.^[10] Lawyers submitting AI-generated materials to the USPTO without verifying the accuracy of the citations may face similar sanctions.

Focus area 4: Develop AI expertise within the USPTO’s workforce

The USPTO plans to “recruit personnel with AI experience and expertise” as well as have USPTO employees and Patent Trial and Appeal Board judges attend presentations on AI-related technologies.^[11] The trainings will include user-oriented training on the effective and responsible use of AI tools.

Focus area 5: Collaborate with other US government agencies, international partners and the public on shared AI priorities

The USPTO has an AI and Emerging Technologies Partnership (AI/ET Partnership). As of May 2024, “over 4,000 people have attended … AI/ET Partnership events.”^[12] Through these efforts, the USPTO seeks to bolster existing collaborations and identify new opportunities to advance governmental AI goals in the United States, including those articulated through executive orders, the National AI Initiative and the National AI R&D Strategic Plan.

The USPTO also aims to collaborate with international partners on AI matters impacting the global intellectual property (IP) system as “AI and its IP implications are matters of global significance. Novel AI-related IP issues often arise in parallel across jurisdictions.”^[13] The USPTO notes that it will also work to inform U.S. participation in broader AI collaborations, such as the G7’s Hiroshima AI Process, ensuring that U.S. interests pertaining to IP (including the rights of content creators, system developers and end users) are represented on the international stage.^[14]

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We anticipate more changes to come as AI’s importance to innovation and invention continues to expand. We invite you to reach out to Kramer Levin’s Artificial Intelligence group to sign up for future alerts on AI developments or should you have any questions about this article, the USPTO’s AI policies or AI issues in general.

^[1]_{USPTO Artificial Intelligence Strategy (Jan. 2025) (AI Strategy), available at www.uspto.gov/sites/default/files/documents/uspto-ai-strategy.pdf.}

^[2]_{Id. at 5.}

^[3]_{Id. at 7.}

^[4]_{Id. at 5.}

^[5]_{Id. at 7.}

^[6]_{www.uspto.gov/initiatives/equity/national-strategy-inclusive-innovation.}

^[7]_{AI Strategy at 16.}

^[8]_{Guidance on Use of Artificial Intelligence-Based Tools in Practice Before the United States Patent and Trademark Office, 89 FR 25609 (Apr. 11, 2024); AI Strategy at 20; www.federalregister.gov/documents/2024/04/11/2024-07629/guidance-on-use-of-artificial-intelligence-based-tools-in-practice-before-the-united-states-patent; www.federalregister.gov/documents/2024/07/17/2024-15377/2024-guidance-update-on-patent-subject-matter-eligibility-including-on-artificial-intelligence; www.federalregister.gov/documents/2024/02/13/2024-02623/inventorship-guidance-for-ai-assisted-inventions.}

^[9]_{Thaler v. Vidal, 43 F. 4th 1207, 1208 (Fed. Cir. 2022) (“the Patent Act requires an ‘inventor’ to be a natural person”).}

^[10]_{See, e.g., New York lawyers sanctioned for using fake ChatGPT cases in legal brief, Reuters (June 26, 2023) available at www.reuters.com/legal/new-york-lawyers-sanctioned-using-fake-chatgpt-cases-legal-brief-2023-06-22/; Texas lawyer fined for AI use in latest sanction over fake citations, Reuters (Nov. 26, 2024) available at www.reuters.com/legal/government/texas-lawyer-fined-ai-use-latest-sanction-over-fake-citations-2024-11-26/}

^[11]_{USPTO AI Strategy at Pg. 21 https://www.uspto.gov/sites/default/files/documents/uspto-ai-strategy.pdf}

^[12]_{Id. at 24.}

^[13]_{Id. at 26.}

^[14]_{Id. at 27.}