Generative AI in USPTO Practice: Key Considerations Under the USPTO’s New Guidance
Generative Artificial Intelligence (AI) tools such as OpenAI’s ChatGPT, Anthropic’s Claude, Midjourney and others, have made waves across various industries and the legal profession is no exception. Specialized publications and recent news are replete of examples of professionals in all fields increasingly turning to these tools to streamline their work. However, the use of generative AI in legal practice also raises special concerns about the potential for errors, bias, and ethical violations. In recent high-profile cases, the use of ChatGPT by attorneys came under scrutiny when their court filing were found to contain false statements and references to non-existent legal authorities. In one case, two lawyers were sanctioned for submitting non-existent AI-generated judicial opinions with fake quotes and citations, without properly verifying the accuracy of such citations. See Mata v. Avianca., No. 22-CV-1461 (PKC), 2023 WL 4114965 (S.D.N.Y. June 22, 2023). This incident highlights the need for lawyers to exercise caution and maintain human oversight when using generative AI tools. Building upon the growing awareness of the pervasive use of generative AI, and its gradual adoption in the legal profession, the United States Patent and Trademark Office (USPTO) has taken steps to address the use of AI tools in practice before the agency. In February 2024, USPTO Director Katherine K. Vidal issued a memorandum to...