Developing IP Issues in Energy Technology and Renewables
Michael Silliman
In 2023, global investments in energy transition projects surged to approximately $1.7 trillion. This unprecedented investment level underscores the transformative shift toward cleaner energy sources and technologies. Government incentives are driving rapid innovation in this space, and private investment is significant in energy transition, especially for companies with patent portfolios. A recent International Energy Agency report highlighted that over 80% of later-stage investment in hydrogen startups was directed toward companies with at least one patent application. This trend underscores the critical role of intellectual property in attracting investment and fostering technological advancements in the energy sector.
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Surging Ex Parte Reexamination Filings Expected to Increase by 40%
Robert Maier, Eliot Williams, Val Svystun 
Since its enactment under the 2011 America Invents Act (AIA), inter partes review (IPR) has remained a pivotal tool for challenging the validity of patents. However, despite the multi-year decline in IPR filings, which generally tracks the overall downward trend in new district court patent litigation filings, EPR filings are surging. A number of different factors may be contributing to these trends. Noteworthy considerations include proceeding costs, petition and reexamination grant rates, and the unpredictability surrounding the PTAB’s discretionary denial of petitions challenging patent claims subject to parallel litigation.
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This article was previously published in the New York Law Journal on September 25, 2024.

This Month: Our Take on AI
Joseph Cahill
FCC Consent Decree on AI-Generated Voice Messages: On August 21, 2024, Lingo Telecom, LLC entered a consent decree with the FCC over alleged violations of the "STIR/SHAKEN" rules through the use of AI-generated voice messages. The FCC action concerned deepfake robocalls mimicking the president's voice to discourage voting in the 2024 New Hampshire Democratic primary. The consent decree requires Lingo Telecom to implement a compliance plan and pay a $1,000,000 civil penalty in four installments. This development highlights the increasing regulatory scrutiny on AI use in telecommunications. Nick Palmieri provides more details on this development here: "Lingo Telecom Enters Consent Decree Over Use of AI to Generate Voice Messages."
USPTO Guidance on AI Inventions and Patent Eligibility: The USPTO issued updated guidance on subject matter eligibility for AI-related inventions, emphasizing the importance of the "practical application" analysis under Step 2A, Prong Two of the Alice/Mayo framework. The guidance confirms that AI inventions are patentable when human inventors make significant contributions. For overcoming Section 101 rejections, the USPTO stresses demonstrating specific technological advancements or solutions to technical problems. Practitioners may find more success in patenting AI inventions by leading their arguments with Prong Two, focusing on crafting compelling narratives that emphasize the invention's real-world impact and technological improvements. Sean Lee explores strategies for navigating these patent eligibility challenges in his article, which also appeared in Law 360: "The Importance of Prong Two of Step 2A for AI Inventions." 

To read more on our Team's insights on AI and the impact on our world, click here.

September 2024 Intellectual Property Report Recap
In case you missed it, here is a video recap of our September 2024 Intellectual Property Report that looked at:
- Avoiding Demurrer: Properly Pleading Inequitable Conduct
- The Importance of Prong Two of Step 2A for AI inventions: A Practical Guide
- Court Strikes Down FTC’s Non-Compete Ban
- The European Union's Artificial Intelligence Act: Uncharted Territory for General Purpose AI Systems
- This Month: Our Take on A

 

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