How will intellectual property keep pace?
In the face of continuous innovation, intellectual property law faces some challenges. Patents, for example, are often issued based on design or on how something is made, such as a single transistor or the arrangement of sub-systems in a chip.
However, the highly integral functions that go into the design and manufacture of transistors or chips complicate intellectual property legal matters. For example, in chipmaking there are certain widely understood standards in the chip fabrication sequence or in circuit design that everyone used at the time a patent was issued – sometimes those standards end up incorporated in claim language. References that highlight such a feature might be hard to find because the standard was so well understood as a requirement, so a contextual understanding of the prior art at the time the patent was issued is needed.
To add another significant complication, there are thousands of steps involved in building chips, so a particular aspect, such as an insulating layer, that was part of the process may be difficult to detect, even with the best instrumentation. “Understanding the context of a patent requires a lot of knowledge about how these things are usually made. Additionally, the combination of claim language and the context of the specification is meant to be understood by a specialist and can be unfamiliar to even technical experts in closely related fields.” Stanley explained.
An issued patent might be proven invalid based on obviousness (prior art), but it may have been prior art that wasn’t apparent to the person getting the patent or to the reviewer at the time of application. In the last 10 years, the shift to inter partes reviews (IPR) helps alleviate some of the complications by providing an efficient alternative to traditional patent litigation and because the review board judges are much better equipped to understand the highly technical details on which many of these patents are based.
As new technologies such as chip level AI advance, such patent disputes can only become more complex, requiring a strong background in the entire manufacturing process as well as a solid understanding of past technologies, in order to provide an effective analysis in any individual case.