How to use AI in patent practice: USPTO guidance and compliance tips
As Artificial Intelligence (AI) and large language models (LLMs) increasingly integrate into legal practices, the U.S. Patent and Trademark Office (USPTO) issued guidance to assist patent attorneys with adopting AI tools in patent drafting, prosecution, and other areas of patent law.
In this article, we summarize the key compliance requirements from the USPTO's guidance and explain how Patent Copilot™ helps practitioners meet these obligations while leveraging AI's benefits.
Core principles
The USPTO has determined that its existing rules sufficiently protect against potential concerns with generative AI use. Importantly:
- There is no prohibition against using AI in drafting documents, including patent applications, for submission to the USPTO.
- There is no general obligation to disclose when AI tools have been used.
However, practitioners must remain vigilant about their existing professional obligations when incorporating AI into their workflows.
Signatory, review, and verification requirements
When submitting documents to the USPTO, all submissions must be signed and reviewed by the responsible party, ensuring accuracy and verification of all information. The USPTO emphasizes that simply relying on the accuracy of an AI tool does not constitute a reasonable inquiry under 37 CFR 11.18(b).
How Solve’s Patent Copilot™ helps
Our platform is designed to keep patent professionals in the driver's seat. Patent Copilot™ works collaboratively with attorneys, generating drafts and suggestions that practitioners review and refine; never autonomously filing documents. This workflow ensures that the human attorney maintains full control over verification and review, supporting compliance with signature and certification requirements.
Duty of disclosure requirements
If AI use is material to patentability, it must be disclosed. This includes situations where AI introduces embodiments that inventors did not conceive, or where a named inventor's contributions were actually made by AI. The duty of disclosure cannot be delegated to an AI system. The individuals identified in 37 CFR 1.56(c) bear personal responsibility for ensuring all material information is submitted.
How Solve’s Patent Copilot™ helps
Patent Copilot™ maintains transparency in the drafting process, clearly delineating AI-assisted suggestions from inventor-provided disclosures. This separation helps practitioners assess whether AI contributions rise to the level of materiality and supports proper inventorship analysis throughout the application process.
Confidentiality and client data protection
Under 37 CFR 11.106, practitioners must make reasonable efforts to prevent inadvertent or unauthorized disclosure of client information. General-use AI systems may retain information entered by users and use it to train models. Before using any AI tool, practitioners must understand the tool's terms of use, privacy policies, and cybersecurity practices. Practitioners supervising others must ensure that staff under their supervision also comply with these requirements.
How Solve’s Patent Copilot™ helps
Solve Intelligence™ has built Patent Copilot™ with data security as a foundational principle. We maintain strict confidentiality protocols, and our platform is designed to protect client information. We do not use client data to train models shared with other users, and we provide transparent information about our data handling practices to support practitioners' compliance obligations.
Export control and security concerns
Practitioners must be mindful of foreign filing license requirements and export regulations when using AI tools. AI tools may use servers outside the United States, meaning entered data could be exported in violation of regulations. Foreign filing licenses do not authorize exporting data abroad for preparing US applications. Practitioners must verify their AI tools' infrastructure before use.
How Solve’s Patent Copilot™ helps
Patent Copilot™ is developed with awareness of export control considerations. We provide practitioners with clear, upfront information about our infrastructure and data handling to support their compliance assessments. Our European and US-based teams understand the sensitivity of patent-related technical information and work with practitioners to meet their data security requirements.
Practitioner competence requirements
Under 37 CFR 11.101, practitioners must possess the legal, scientific, and technical knowledge reasonably necessary for representation. The ABA Model Rules, which inform USPTO Rules, specify that lawyers must keep abreast of the benefits and risks associated with relevant technology.
Additionally, under 37 CFR 11.104, practitioners must reasonably consult with clients about the means by which objectives are accomplished—including the use of AI tools in their matters.
How Solve’s Patent Copilot™ helps
We designed Patent Copilot™ to be intuitive and transparent, helping practitioners understand how AI assists in the drafting process. Our platform includes resources and documentation to support practitioners in developing competence with AI tools, and our collaborative approach facilitates meaningful client communication about AI use in their matters.
Conclusion
The USPTO's guidance provides a comprehensive framework for the responsible use of AI in patent practice. While there is no prohibition on AI use, practitioners must remain attentive to their professional obligations regarding verification, disclosure, confidentiality, export controls, and competence.
How Solve’s Patent Copilot™ helps
At Solve Intelligence™, we are building the first AI-powered platform to assist with every aspect of the patenting process. Our Patent Copilot™ assists with patent drafting, prosecution and office action analysis, portfolio strategy and management, infringement analyses, and litigation workflows.
Patent Copilot™ works with the patent professional; we have designed our products to keep patent professionals in the driving seat. This approach equips legal professionals, law firms, companies, and inventors with powerful tools while maintaining the human oversight that the USPTO's guidance requires.
To learn more about how Patent Copilot™ can enhance your practice while supporting your compliance obligations, contact us today.
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