Electric Power Group is dangerous for AI patents

Danger is lurking for artificial intelligence (AI) patents: it’s the Electric Power Group line of cases from the Federal Circuit involving patentable subject matter under 35 U.S.C. § 101. I’ve been warning about this for years. In Electric Power Group (2016), the Federal Circuit found that data gathering, analysis, and display is an abstract idea. When I first read the case, I thought that that description pretty much described a lot of AI-based, decision-support systems (e.g., machine learning), because it does. Over about 20 cases, the Federal Circuit has even expanded Electric Power Group’s holding to include such steps as data compression (Voit Technologies) and acquiring and transferring data from a Bluetooth-enabled device (Cellspin Soft). This line of cases is alive and well. I most recently saw the Federal Circuit follow Electric Power Group in August (Mobile Acuity).

Electric Power Group is dangerous because, as we know from the Supreme Court’s Alice decision, if a claim is directed to an abstract idea and is merely implemented on a generic computer, it can be struck down. So, Electric Power Group can be seen as moving some AI patents one step closer to invalidation, serving as perhaps a powerful sword. To defend, patent owners need to focus on any improvements to the functioning of the computer itself, technical solutions to technical problems, or improvements over the prior art.