Artificial intelligence (A.I.) is exploding across industries for developing or delivering goods and services. Businesses and inventors have followed with seeking patent protection in A.I. The rapid rise in A.I. patent filings has not been without debate of doctrinal patent law issues with inventorship, nonobviousness, and patent eligibility of A.I. A natural, next doctrinal inquiry is to determine what could be considered patent infringement of A.I. The imitation of A.I. technology raises the question—how should infringement of A.I. patents that are not invalidated be analyzed?
The technological distinction of “dynamic, trainable data sets” informs statutory interpretation of 35 U.S.C. § 271 for infringement of A.I. patents. An examination of § 271(a) direct, § 271(b) indirect (active inducement and contributory), and § 271(c) infringement of A.I. patents centers on A.I.’s autonomous ability to function without humans, to modify, and to evolve over time in response to new data. While the analysis of the patent infringement statute of A.I. generally shows that patentees would have considerable difficulty in prevailing against would be infringers, it suggests A.I.’s distortions with existing patent law framework necessitates redefining “inventors” and the notion of an infringer. The dynamic nature of A.I. also complicates the current scope of the term “divided infringement,” resulting in distributional consequences and new considerations for patent policy.