In the matter of ex parte Desjardins et al., the Appeals Review Panel vacates the Patent Board of Appeals decision that claims concerning machine learning are not patent eligible subject matter. The Appeals Review Panel included Under Secretary of Intellectual Property John Squires who is also Director of the United States Patent and Trademark Office. The Appeals Review Panel criticized the Patent Board of Appeals for not adequately considering the teachings of the Federal Circuit’s Microsoft v. Enfish decision and stated:
Under a charitable view, the overbroad reasoning of the
original panel below is perhaps understandable given the confusing nature of
existing § 101 jurisprudence, but troubling, because this case highlights what
is at stake. Categorically excluding AI innovations from patent protection in
the United States jeopardizes America's leadership in this critical emerging
technology. Yet, under the panel's reasoning, many AI innovations are
potentially unpatentable-even if they are adequately described and nonobvious-because
the panel essentially equated any machine learning with an unpatentable
"algorithm" and the remaining additional elements as "generic
computer components," without adequate explanation. Dec. 24. Examiners and
panels should not evaluate claims at such a high level of generality.
The reasoning of the Appeals
Review Panel is based upon the USPTO approach to patent eligible subject matter
analysis.
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