Patents are about to get more enforceable
“It is quite likely that you, the reader, have infringed a patent today,” reads the first line of professor Janet Freilich’s recent article in the Virginia Law Review. The millions of patents active in this country today can apply to things as quotidian as playing on a swing or using Wi-Fi.
And with the rise of artificial intelligence, Freilich says, patents are about to get a lot more enforceable — or, as she puts it, “salient.”
“Even I can’t read millions of patents, but artificial intelligence probably can,” Freilich said in an interview with “Marketplace.” “So suddenly, we have a technology to sort through — at least to some extent — this thicket of patents to pull out the ones that are more relevant.”
Not to worry too much, though. Even if patent violations become easier to root out using AI, challenging infringement is expensive and patent rights are a pain to enforce.
Host Kai Ryssdal talked to Freidlich about how a rise in patent salience could change how we do business. Below is an edited transcript of their conversation.
Kai Ryssdal: It is rare that I read a law review article. It is even more rare when I read one that makes me go, “Wait, what?” And you started this thing in the Virginia Law Review by saying, “It is quite likely that you, the reader, have infringed a patent today.” I’m a law-abiding person. What do you mean? What do you mean I’ve infringed a patent?
Janet Freilich: I’m sorry to tell you, but yes, you probably have. And you, the listener, probably have too. There are so many patents out there and they cover so many different things that it is practically impossible to get through your day without doing something that infringes on some patent.
Ryssdal: OK, so then why am I not getting sued every time I turn around?
Freilich: Well, probably because it’s not cost-effective. So, not speaking for you but speaking for myself, it costs a lot of money to bring a lawsuit — millions of dollars, hundreds of thousands at least. And for most people, there’s no point, so the patenters will let it slide. They also probably don’t know you’re doing it.
Ryssdal: However, you say in this piece that artificial intelligence and technology may change that. And the word you use, I think, is “salience” — how patents are going to become salient again. Explain, please.
Freilich: Technology is making it easier to find out about patent infringement. And it’s making it easier to, in some ways, enforce patents. And it’s making it easier for people to find out about patents, and so sometimes we can take voluntary action to avoid them. It used to be hard to know what people were doing with their technology. Now, with the internet, you can search on Amazon to find all the products that might infringe. So that’s one example of technology.
Ryssdal: You probably read more patents than I do, he says tongue in cheek. How big a boon to you would it be as a woman whose job — at least somewhat — encompasses reading patents, to be able to zip out ChatGPT or whatever AI of your choice and be able to figure out what’s going on?
Freilich: It makes a huge difference. Patents are quite terrible to read, as I’m probably the only person in the world who says I like reading patents. They are long, they are dozens of pages and they’re written in this terrible legal language — I’m sorry, I’m a lawyer, I like it. But this legal language is very hard to read, and there are millions of them, and they’re not standardized in any way, so they’re hard to find. Even I can’t read millions of patents, but artificial intelligence probably can. And so suddenly, we have a technology to sort through, at least to some extent, this thicket of patents to pull out the ones that are more relevant, to more easily find relevant patents.
Ryssdal: This is a little abstract, but it seems to me the patent system works because nobody wants to wade into the thicket and the morass that is the American patent system, right? I mean, you’ve got the high-profile ones and all of that, but otherwise, it’s too costly and time-consuming to enforce.
Freilich: That’s right. So right now, a lot of the way the current system works just depends on most people in most situations ignoring patents and ignoring patent infringement. I’ll give you an example, which is that there’s a fairly well-known patent that was granted that covered a stick — like the kind of stick you’d find on the ground, that falls off a tree, that your dog or your child might pick up and play with.
Ryssdal: OK, you’re gonna have to explain.
Freilich: So this was a mistake. This patent should not have been granted, but it did get granted. It somehow made its way through the patent office, and a lot of patents are granted by mistake. So there are a lot of patents — maybe not quite this silly — but there are a lot of erroneously granted patents out there. I stepped on a stick this morning, I kicked a stick. My 4-year-old son picks up a stick every single time we go out and waves it around. Every time we do that, we are infringing on this patent.
Ryssdal: Wow. Wow. That’s all I can say, just wow. So, what do we do with this? I mean, it’s literally in the Constitution. There’s a whole agency in the government that’s set up to grant patents and enforce patents, and yet … a stick?
Freilich: And so, this patent was eventually invalidated. It was just such an obvious example of something that shouldn’t be there. But most patents that should not have been granted — well, it also costs money to challenge a patent, and so they’re out there. And if we suddenly took every patent seriously, we would have to pay a licensing fee every time we wanted to pick up a stick. That obviously becomes burdensome and cumbersome and poses a challenge to the way we do business right now. The flip side, of course, is that small inventors maybe get more licensing fees than they’d otherwise have.
Ryssdal: Just in the grand scheme of things: Do you think the patent system works?
Freilich: It works in certain circumstances, in certain industries, for certain companies. And then there are many, many, many ways in which it does not work at all.