Matter of Weber – Generative AI and Expert Witness Calculations 
Ben Bafumi
The recent Matter of Weber case highlights challenges presented by using AI during discovery while offering straightforward guidance for the future. Weber, tried in Surrogate's Court in Saratoga County, NY, involved a trust accounting dispute where a trustee allegedly breached their fiduciary duty to manage a property. Of note, an expert witness used Microsoft Copilot, a generative AI chatbot, to cross-check calculations for a supplemental damages report presented at trial. The expert witness (1) could not remember exactly what prompts he input into the chatbot and (2) could not explain how the chatbot arrived at its outputs (i.e., the derived sources, methodology, etc.). The Court applied a hands-on approach to validate the report, wherein they input similar prompts into Copilot and found inconsistent results. Moreover, when the Court prompted Copilot to respond to the queries "are you accurate" and "are you reliable," Copilot’s responses noted the program's innate need for human oversight and validation. The "black box" nature of generative AI chatbots may make it increasingly difficult to cross-examine experts who use such AI systems to validate underlying data. In the absence of any bright-line rules regarding the issue, the Court created new guidelines – ruling that attorneys have an affirmative duty to disclose the use of AI in generating evidence, and further, that such evidence be subject to Frye hearings on its admissibility. 

Stakeholders Shed Light on Gray Areas in USPTO's July 2024 Guidance on AI Patent Eligibility
Coleman Strine
The USPTO's July 2024 Guidance on AI patent eligibility seeks to clarify gray areas in the patent eligibility analysis for AI inventions. It reviews relevant case law and provides examples of both patentable and unpatentable AI inventions. This Guidance along with other patent procedures is intended to be used by USPTO personnel and practitioners when evaluating patent applications and patents.

The period to submit comments on the USPTO July Guidance closed on October 16, 2024. On review, stakeholder reactions were largely negative, citing several remaining areas of ambiguity and confusion. Commenters identified key areas of the patent eligibility analysis that remain unclear. For example, the Intellectual Property Office noted that the line between AI claims that are considered unpatentable mental processes and those that are mathematical algorithms is still difficult to define. Also, the American Intellectual Property Law Association requested further clarification on how examiners should determine what an AI claim is "directed to." For now, the USPTO July Guidance is in effect. However, practitioners should anticipate possible future updates addressing these comments. 

Quick Links
For additional insights on AI, check out Baker Botts’ thought leadership in this area:

1. AI Counsel Code Podcast: Listen to "The Future of AI (Part 1)," the first episode of a three-part series, where host Maggie Welsh turns the mic over to Baker Botts Austin partner Mark Speegle and Dr. Pablo Rivas, a computer science professor at Baylor University and an expert on large language models, for a discussion on AI’s definition and how it’s used today.
2. Navigating Global Approaches to AI Regulation: Joe Cahill provides and overview of how AI regulation is being approached in the EU, the US, and the UK.
3. New York State Department of Financial Services Issues AI Cybersecurity Guidance: Matthew Baker, Joseph Perry, Brendan Quigley, Rich Harper, and Maggie Welsh analyze the Guidance and highlight key takeaways. 
4. SEC Continues Focus on AI and Cyber-Risk Related Enforcement Cases: Brendan Quigley and Matthew Baker discuss the SEC's recent enforcement actions focused on AI and cyber disclosures.
5. Department of Labor Releases "Best Practices" Guide for Employers Using Artificial Intelligence: Scott Nelson and Claire Mahoney summarize the eight principles and their corresponding guidelines. 
   
   

For additional information on our Artificial Intelligence practice, experience and team, please visit our page here. 

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