[Senate Hearing 118-65]
[From the U.S. Government Publishing Office]




                                                         S. Hrg. 118-65

                      ARTIFICIAL INTELLIGENCE AND
                     INTELLECTUAL PROPERTY_PART I:
                  PATENTS, INNOVATION, AND COMPETITION

=======================================================================

                                HEARING

                               before the

                 SUBCOMMITTEE ON INTELLECTUAL PROPERTY

                                 of the

                       COMMITTEE ON THE JUDICIARY
                          UNITED STATES SENATE

                    ONE HUNDRED EIGHTEENTH CONGRESS

                             FIRST SESSION

                               __________

                              JUNE 7, 2023

                               __________

                          Serial No. J-118-19

                               __________

         Printed for the use of the Committee on the Judiciary 
         
         
         
         
         
                
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                  U.S. GOVERNMENT PUBLISHING OFFICE 
                  
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                       COMMITTEE ON THE JUDICIARY

                   RICHARD J. DURBIN, Illinois, Chair
DIANNE FEINSTEIN, California         LINDSEY O. GRAHAM, South Carolina, 
SHELDON WHITEHOUSE, Rhode Island       Ranking Member
AMY KLOBUCHAR, Minnesota             CHARLES E. GRASSLEY, Iowa
CHRISTOPHER A. COONS, Delaware       JOHN CORNYN, Texas
RICHARD BLUMENTHAL, Connecticut      MICHAEL S. LEE, Utah
MAZIE K. HIRONO, Hawaii              TED CRUZ, Texas
CORY A. BOOKER, New Jersey           JOSH HAWLEY, Missouri
ALEX PADILLA, California             TOM COTTON, Arkansas
JON OSSOFF, Georgia                  JOHN KENNEDY, Louisiana
PETER WELCH, Vermont                 THOM TILLIS, North Carolina
                                     MARSHA BLACKBURN, Tennessee 
                                     
             Joseph Zogby, Chief Counsel and Staff Director
      Katherine Nikas, Republican Chief Counsel and Staff Director

                 Subcommittee on Intellectual Property

                 CHRISTOPHER A. COONS, Delaware, Chair
MAZIE K. HIRONO, Hawaii              THOM TILLIS, North Carolina, 
ALEX PADILLA, California               Ranking Member
JON OSSOFF, Georgia                  JOHN CORNYN, Texas
PETER WELCH, Vermont                 TOM COTTON, Arkansas
                                     MARSHA BLACKBURN, Tennessee 
                                     
                 James Barton, Democratic Chief Counsel
               Seth Williford, Republican General Counsel 
               
               
               
               
               
               
               
               
               
               
               



               
               

                            C O N T E N T S

                              ----------                              

                        JUNE 7, 2023, 3:01 P.M.

                    STATEMENTS OF COMMITTEE MEMBERS

                                                                   Page

Coons, Hon. Christopher A., a U.S. Senator from the State of 
  Delaware.......................................................     1
Tillis, Hon. Thom, a U.S. Senator from the State of North 
  Carolina.......................................................     3
    prepared statement...........................................    34

                               WITNESSES

Witness List.....................................................    33
Abbott, Ryan, professor of law and health sciences, University of 
  Surrey School of Law, Guildford, United Kingdom, and adjunct 
  assistant professor, David Geffen School of Medicine, 
  University of California, Los Angeles, California..............     8
    prepared statement...........................................    42
Elluru, Rama, senior director, society and intellectual property, 
  Special Competitive Studies Project, Washington, DC............    11
    prepared statement...........................................    53
Salsberg, Corey, vice president and global head of IP affairs, 
  Novartis, Washington, DC.......................................     4
    prepared statement...........................................    60
Sheridan, Laura, head of patent policy, Google, New York, New 
  York...........................................................     6
    prepared statement...........................................    75
Villasenor, John, professor of law, electrical engineering, and 
  public policy, and founder and faculty co-director, Institute 
  for Technology, Law, and Policy, University of California, Los 
  Angeles, California............................................     9
    prepared statement...........................................    81

                               QUESTIONS

Questions submitted to Ryan Abbott by Senator Tillis.............    89
Questions submitted to Rama Elluru by Senator Tillis.............    93
Questions submitted to Corey Salsberg by Senator Tillis..........    97
Questions submitted to Laura Sheridan by Senator Tillis..........   101
Questions submitted to John Villasenor by Senator Tillis.........   105

                                ANSWERS

Responses of Ryan Abbott to questions submitted by Senator Tillis   109
Responses of Rama Elluru to questions submitted by Senator Tillis   114
Responses of Corey Salsberg to questions submitted by Senator 
  Tillis.........................................................   121
Responses of Laura Sheridan to questions submitted by Senator 
  Tillis.........................................................   133
Responses of John Villasenor to questions submitted by Senator 
  Tillis.........................................................   138   


 
                      ARTIFICIAL INTELLIGENCE AND 
                     INTELLECTUAL PROPERTY--PART I:                      
                  PATENTS, INNOVATION, AND COMPETITION

                              ----------                              


                        WEDNESDAY, JUNE 7, 2023

                                    United States Senate,
                      Subcommittee on Intellectual Property, 
                                     Committee on the Judiciary, 
                                                    Washington, DC.
    The Subcommittee met, pursuant to notice, at 3:01 p.m., in 
Room 226, Dirksen Senate Office Building, Hon. Christopher A. 
Coons, Chair of the Subcommittee, presiding.
    Present: Senators Coons [presiding], Hirono, Padilla, 
Tillis, and Blackburn.
    Also present: Senator Blumenthal.

        OPENING STATEMENT OF HON. CHRISTOPHER A. COONS,
           A U.S. SENATOR FROM THE STATE OF DELAWARE

    Chair Coons. I'd like to call this hearing to order. Thank 
you to all of our witnesses for participating today. I'd like 
to thank Ranking Member Tillis and your staff for working so 
well and closely with mine to put together this hearing on a 
consensus basis. As you can tell from the attendance, this is a 
topic of wide interest. And so to my colleague and friend, 
Senator Hirono, I am looking forward to a robust hearing on the 
topic of artificial intelligence and intellectual property.
    We're going to explore some of the recent developments in 
AI, and in particular, patents and the impact of AI and 
innovation and U.S. competitiveness. Make no mistake, AI 
presents novel questions across a wide range of areas of IP 
policy. And today's the first in a series of hearings that this 
Subcommittee will have looking at the intersection of 
artificial intelligence and intellectual property law and 
policy.
    We've all heard about different tools like ChatGPT or 
DALLE, impressive new generative AI tools that have opened up 
so many creative avenues and raised many concerns. These tools 
are just a few of many popular uses, but generative AI has 
already been put to work to help solve a wide range of very 
serious and substantive problems. Drug development is just one 
particularly compelling example.
    Over the last few decades, antibiotic discovery and 
developments have become increasingly difficult and expensive. 
Many researchers have given up because new antibiotic drugs 
have not been able to overcome the threat of antibiotic 
disease. In fact, no antibiotic classes have been introduced 
since the 1980s.
    Enter AI. Researchers at MIT recently trained an AI model 
using a large collection of diverse molecules and then used the 
model to make a new and potent antibiotic that is effective 
against antibiotic-resistant bacteria. This discovery didn't 
take years. It didn't take weeks. It took a few days.
    I share this story because many of the conversations around 
AI focus on the potentially harmful uses of the technology, 
threats of misinformation, and bias. Highlighting these uses is 
important, but I believe we also have to act thoughtfully to 
set critical safeguards. It's important to shine a light on how 
AI is being used to innovate. Drug development is one 
compelling example. Others include its role in efforts to 
combat climate change, to address our computer chip shortage, 
and to create renewable energy sources.
    These innovations raise new, interesting, and complex 
patent law issues, including whether innovations facilitated by 
AI are, or should be, patentable, and if so, who should be 
listed as the inventor. Currently, in the U.S., many AI-
generated inventions are not patentable because the Supreme 
Court has determined the law does not permit including a non-
human inventor on a patent application.
    The decisions we make in Congress about whether and how to 
protect AI-related innovations will also have significant 
consequences for U.S. innovation and competitiveness. We need 
to ensure we establish a rights regime that encourages AI-
generated innovation to stay here in the United States, instead 
of incentivizing innovators to turn to other countries with 
more favorable laws to protect their AI-generated inventions 
and other emerging technologies.
    Despite the critical role of IP in AI innovation, IP 
considerations have largely been missing from proposed AI 
regulation frameworks. Neglecting IP in an effort to regulate 
AI would have serious unintended consequences for our 
innovation ecosystem, our national security, our economic 
competitiveness. In contrast, competitors, like China, 
recognize IP policies as an important tool in national 
strategies for AI and other emerging technologies.
    China has elevated the role of its patent and trademark 
office and has even been exploring data rights as a new form of 
IP protection for AI. So what can we do? There are some initial 
steps we can take to ensure U.S. leadership on AI policies. I 
think it's critical that we include IP considerations in 
ongoing AI regulatory frameworks and make certain the U.S. 
Patent and Trademark Office has a seat at the table.
    We should change our patent eligibility laws, and I suspect 
my colleague agrees, so that we can protect critical AI 
innovations. And last, we should consider whether other changes 
to our patent laws or new and unique protections may be 
necessary to encourage innovation in AI and emerging 
technologies. I am excited to explore these issues with you 
today. With Senator Tillis' cooperation, we have a superb panel 
with a diversity of views and perspectives. You will, I 
suspect, find 5 minutes a bracingly short period in which to 
explain them.
    We are grateful for your lengthy, submitted written 
testimony and look forward to your individual summaries. But 
first, I'll turn it over to Senator Tillis before I introduce 
our panel. Senator.

             OPENING STATEMENT OF HON. THOM TILLIS,
        A U.S. SENATOR FROM THE STATE OF NORTH CAROLINA

    Senator Tillis. Thank you, Chairman Coons. And thank you 
for really another great hearing topic and opportunity. Before 
I make a few brief remarks, I'm just curious, could anybody--if 
you're under the age of 35 out there, would you raise your hand 
right now?
    [Audience members raise their hands.]
    Senator Tillis. Okay.
    [Laughter.]
    Senator Tillis. So I kind of bring up the average a little 
bit, but even this old guy is pretty interested in this 
subject. But I thank you all for being here. I think this is 
one of an endless number of hearings that we're going to have 
to have to make sure that we get it right.
    And it's great to highlight the importance of intellectual 
property. Within about 24 hours of ChatGPT offering its beta 
site, I signed up, I had--back in the mid 1980s, I was actually 
working in AI when the state-of-the-art was character 
recognition, pattern recognition, and voice recognition. So 
we've come a long way since then, and as the tools continue to 
explode, the challenges are going to be great. So this is a 
good starting point.
    I think the one topic--everybody's talking about all the 
bad things that could happen with AI, ``I, Robot,'' the zombie 
apocalypse, and the good things that are going to happen 
category. And even if we chose not to participate as a nation, 
it's going to happen. So the question is whether or not the 
United States is going to maintain a leadership position in 
innovation and what I think is one of the most promising spaces 
for future innovation that we have today.
    But we're having this hearing. AI is going to have a 
massive impact on intellectual property. And I think this 
hearing begins to allow us to start parsing this up into issues 
related to patents, into issues related to copyrights, and any 
number of other subjects. So I'm going to submit my opening 
statement for the record. But the key here is, if anyone on the 
panel thinks that AI is bad and we got to avoid it, then we'll 
agree to disagree. But I'd be interested in your comments.
    What I'm most interested in is seeing how this new tool, 
this new capability, is going to continue to make the United 
States of America the leading--the historic, leading innovator. 
And I look forward to your comments.
    [The prepared statement of Senator Tillis appears as a 
submission for the record.]
    Chair Coons. Thank you, Senator Tillis. I'm now going to 
turn to an introduction of our witness panel. We welcome five 
witnesses to testify about the intersection of AI and patents, 
innovation, and competition.
    Our first witness is Corey Salsberg, a vice president, 
global head of IP affairs at Novartis, a global healthcare 
company. He's responsible for defining and developing Novartis' 
core positions and directing its advocacy efforts with respect 
to IP law and policy.
    Next, we have Laura Sheridan. Ms. Sheridan is head of 
patent policy at Google and advocates for an effective patent 
examination process, a patent litigation system that operates 
fairly for all, and transparency in these areas. She's part of 
the IP Owners Association, a delegation to IP5 Industry, and a 
group which engage--a group which engages the IP5 Offices on 
procedural harmonization matters.
    Next is Ryan Abbott, professor of law and health sciences 
at the University of Surrey and an adjunct professor of 
medicine at UCLA. Professor Abbott is the author of ``The 
Reasonable Robot: Artificial Intelligence and the Law.'' He 
also leads the Artificial Inventor Project, representing Dr. 
Stephen Thaler in the global legal test cases seeking IP rights 
for AI-generated inventions.
    Next, we'll hear from John--Professor John Villasenor. 
Professor Villasenor teaches law, electrical engineering, and 
public policy at UCLA, where he founded the UCLA Institute for 
Technology, Law, and Policy. His work considers the 
intersection of technology and law in areas including 
artificial intelligence, digital privacy, and the technology 
supply chain. He's written on the implications of AI in 
relation to patents.
    Finally, we have Rama Elluru, senior director for society 
and intellectual property at the Special Competitive Studies 
Project. She leads a team working on shaping AI governance and 
IP policy. Previously served as staff to the National Security 
Commission on Artificial Intelligence, she led the NSCAI's IP 
efforts and worked on the ethical and responsible use of AI.
    After I swear in our panel of witnesses, each witness will 
have 5 minutes to provide your opening statement. I know that 
will be difficult, but please restrain yourselves. We will then 
proceed and have each Senator question for 5 minutes, and we'll 
do our best to live within those limits. I hope we will have 
time for a second round of questioning. It really depends on 
how many of our colleagues join, so could you all please stand 
to be sworn in? Please raise your right hand.
    [Witnesses are sworn in.]
    Chair Coons. Thank you. Mr. Salsberg, you may proceed with 
your opening statement.

       STATEMENT OF COREY SALSBERG, VICE PRESIDENT AND  
     GLOBAL HEAD OF IP AFFAIRS, NOVARTIS, WASHINGTON, DC

    Mr. Salsberg. Thank you, Chairman Coons, Ranking Member 
Tillis, Senators Hirono and Blackburn, and distinguished 
Members of the Subcommittee. My name is Corey Salsberg, and I 
am vice president and global head of IP affairs for Novartis. 
On behalf of the company, thank you very much for the 
opportunity to testify today. Today's hearing is timely and 
extremely important because, as everyone in the room knows, AI 
is already here.
    It's in wide use across industries and society, and it is 
fast shaping our future. As an early adopter of AI in the life 
sciences, Novartis is using today's AI tools to help us 
accelerate drug discovery, to make our clinical trials more 
efficient, and even as an aid in molecule design. As some 
examples, machine learning tools are helping us more quickly 
screen the millions of compounds in our libraries to accelerate 
the selection of candidates with desirable properties, such as 
the ability to bind to a disease-implicated target in the body.
    Our AI-enabled platform Nerve Live uses AI tools to help us 
anticipate and resolve operational issues at our thousands of 
global clinical trial sites, and in a field known as generative 
chemistry our scientists recently trained, guided, and used our 
AI-enabled research platform called Jaeger to assist in 
generating new virtual molecules for potential use in treating 
malaria.
    Tomorrow's AI tools promise to expand on these activities 
and enable many more, helping us to unlock medical insights 
like the secrets of the human genome and to ultimately develop 
more effective, personalized, safe, and efficient medicines. 
What this means is that the time is right to ensure that the 
right laws and policies are in place to enable that future. But 
the right policies depend on the right information being shared 
and the right questions being asked, which makes this hearing 
especially timely.
    While everybody knows that AI is here, not everyone 
understands or agrees what that means. It's easy and perhaps 
tempting to equate the outputs of a generative AI chatbot or 
the familiar sounds of an AI-generated pop song with human-
level thoughts and creativity and equally easy to assume that 
the role that AI plays in one field or situation is the same as 
in all others. But when it comes to AI, ubiquity does not mean 
uniformity.
    Last month, with reference to our Jaeger platform that I 
mentioned, a headline in Politico posed the question, ``Can 
Jarvis hold a patent?,'' apparently referring to the fictional 
artificial superintelligence entity Jarvis in the Marvel movie 
franchise. While this may make an intriguing headline and it 
certainly delighted my three kids, Jaeger is not Jarvis, and 
whether AI can or should be awarded a patent is not, in our 
view, the right question at this point in time.
    As a foundational matter, before addressing whether AI can 
earn or own a patent, the right question is whether today's AI 
is even inventing. In our experience, as a matter of fact, the 
answer is no. At least in our field, AI tools today are still 
just that, tools that are helping to facilitate, optimize, and 
enhance human activity and ingenuity and to advance human-
defined goals.
    Non-generative machine learning tools that improve or 
accelerate tasks we would otherwise do ourselves or that help 
reveal information that we're unable to observe on our own are 
largely analogous to other tools, that such as high-throughput 
screeners, calculators, and microscopes. While generative AI 
tools like Jaeger may be used to generate new things, 
generating is not the same as inventing, at least not where it 
takes a human to define the problem, guide the solution, and 
recognize, appreciate, and synthesize the results. But that 
does not fully resolve the matter.
    A second question, which is top of mind for innovators like 
us, is whether using AI to assist in R&D compromises the 
ability of our human scientists to patent the resulting 
inventions. Here, as a matter of law, we believe the answer is 
no. But we must ensure that the doctrine of inventorship law, 
known as conception, which traditionally considers whether an 
invention occurred inside the mind of the inventor, is not 
applied too rigidly to deprive human inventors of patent rights 
simply because generative AI now allows some of the inventive 
process to occur in silico or on a computer.
    Other principles of existing competition law such as the 
ability--conception law, sorry, such as the ability of an 
inventor to obtain ideas and materials from others so long as 
he or she maintains intellectual domination over the process 
and the rule that an invention is only conceived when it is 
operable, recognized, and appreciated, can address this concern 
provided the Patent Office and courts properly apply them. 
Because conception law is unique to the United States, though, 
we believe this is a critical issue to get right, so we do not 
put our Nation's innovators at a disadvantage and compromise 
America's economic and strategic leadership.
    A third important question is whether we will even need 
patents if and as AI advances to the point where it's able to 
fully invent on its own. Here, as a matter of policy, we 
believe the answer is resoundingly yes because the patent 
system's constitutional goal of promoting progress cannot be 
realized unless innovators are encouraged to not only invent, 
but to publish, develop, and commercialize their inventions. In 
this regard, it's important to remember that in our field, the 
invention of new molecules, proteins, and other substances is 
only the start of the long, complex, and risky process of 
developing new medicines.
    Without patents or comparable incentives to enable that 
work, we would not have new treatments and cures, no matter how 
many new molecules appear on computer screens. Thank you very 
much for the opportunity. I look forward to your questions.
    [The prepared statement of Mr. Salsberg appears as a 
submission for the record.]
    Chair Coons. Thank you very much, Mr. Salsberg. Ms. 
Sheridan.

       STATEMENT OF LAURA SHERIDAN, HEAD OF PATENT POLICY,   
                  GOOGLE, NEW YORK, NEW YORK

    Ms. Sheridan. Good afternoon, Chairman Coons, Ranking 
Member Tillis, and Members of the Committee. Thank you for the 
opportunity to appear before you today. My name is Laura 
Sheridan and I'm head of patent policy at Google. For more than 
20 years, I have witnessed firsthand how patent policy and the 
law have adapted to match the pace of innovation. Today, I look 
forward to answering the Committee's questions on artificial 
intelligence and patenting.
    Google's approach to artificial intelligence is both bold 
and responsible. We believe we must develop AI in a way that 
maximizes the positive benefits to society while addressing the 
challenges. The only way to be truly bold in the long term is 
to be responsible from the start. We're committed to developing 
AI technology responsibly, applying strong safety and security 
practices, and continuing to develop our AI innovations in 
accordance with best practices.
    We introduced our AI principles in 2018 to guide our 
development of this critical technology, and we work closely 
with external partners to draw on their expertise and share our 
learnings on responsible AI practices. Google is utilizing AI 
across our entire business. We use AI in our groundbreaking 
products used by people everywhere, our contributions to 
scientific advances that benefit people, and our efforts 
helping to address societal challenges.
    The potential of AI to solve big problems is rapidly 
increasing. We're proud of efforts to partner in the use of 
this technology to help address problems and improve the lives 
of people around the world. For example, we're deploying AI to 
help forecast floods, monitor prenatal health, and detect 
genetic variations linked to disease. We're also using AI in 
the innovation process to help expedite chip floor planning, 
identify optimal neural network architectures, and improve upon 
the drug design process. These advances are described in 
greater detail in my written testimony.
    We have significant experience seeking coverage for AI 
inventions in the United States and around the world and have 
one of the largest portfolios of AI-related patents. And we are 
engaging extensively with the U.S. Patent and Trademark Office 
on issues related to inventorship and artificial intelligence, 
including by submitting comments, offering testimony, and 
participating in listening sessions.
    We agree with the USPTO that there is a spectrum of 
inventive behavior. We believe current industry uses of AI are 
well within the zone where humans are properly named as 
inventors and where AI is leveraged as a tool in the invention 
process. We expect to remain in this zone for some time. 
However, we do encourage the USPTO to shed light on 
inventorship, and we believe that guidance from the office 
would allow for a clear conversation between patent applicants 
and their counsel.
    We also respectfully suggest that the USPTO encourage 
patent applicants to document inventor contributions. And we 
encourage the USPTO to implement robust technical training for 
any patent examiner who is examining AI-related innovations, 
whether those are inventions on core AI technology or on 
specific applications of core AI technology. The number of 
patent examiners who are now examining these AI-related 
inventions makes up a substantial portion of the examining 
core, and that number is only going to increase.
    We urge that a comprehensive technical training program be 
put in place so patent examiners are well-situated to assess 
whether or not to grant a patent. Google also supports 
increases to patent fees for large companies, while ensuring 
that small and micro entity fees remain low. We believe the 
USPTO will be in the best position to issue robust and reliable 
patent rights, including in complex emerging technologies like 
AI, when the fees before the grant of a patent more closely 
match the costs.
    We believe large companies like Google should shoulder more 
burden and support the overall health of the patent system. We 
appreciate this important discussion on the current state of AI 
and patenting. Google continues to engage with Government 
officials and the public to further discussions on AI and 
responsible development principles. Google will continue to 
provide feedback on the intersection of AI and patents to 
ensure we continue to strike the right balance for our patent 
system to incentivize AI innovation.
    Thank you for the opportunity to appear before you today, 
and I look forward to your questions.
    [The prepared statement of Ms. Sheridan appears as a 
submission for the record.]
    Chair Coons. Thank you, Ms. Sheridan. Professor Abbott.

STATEMENT OF RYAN ABBOTT, PROFESSOR OF LAW AND HEALTH SCIENCES,  
  UNIVERSITY OF SURREY SCHOOL OF LAW, GUILDFORD, UNITED KINGDOM,  
  AND ADJUNCT ASSISTANT PROFESSOR, DAVID GEFFEN SCHOOL OF  
  MEDICINE, UNIVERSITY OF CALIFORNIA, LOS ANGELES, CALIFORNIA 

    Professor Abbott. Thank you, Chairman Coons, Ranking Member 
Tillis, and Members of the Committee. A picture is worth a 
thousand words, and I've tried to do one better with a 3D-
printed model of an AI-generated invention. We call this the 
fractal container because it's a beverage container based on 
fractal geometry. The United Kingdom Intellectual Property 
Office, the U.K. analog of the United States Patent and 
Trademark Office, conducted a substantive examination on this 
and determined it was new, inventive, and useful, which are the 
major requirements to get a patent.
    The invention came from an AI system called Davis. Davis 
was built and trained by people, but on general knowledge 
rather than on knowledge specifically about container design. 
It was not asked to solve a specific problem, and its user had 
no training in container design or specific intent to design a 
new container. Davis was built to combine simple ideas and 
concepts into more complex ones and identify when a complex 
concept had a positive outcome.
    Here it identified that a beverage container based on 
fractal geometry would have higher surface area, which would 
improve heat transfer like the opposite of a thermos, and it 
would make it easier to grip. All that before a human being 
laid eyes on the AI's output. If the AI had been a human being, 
it would be the patent inventor. When I actually had one 3D-
printed, I was surprised at how easy it was to grip, which 
might make it easier for someone with Parkinson's disease to 
use.
    I was also surprised to see how difficult it was to drink 
out of, and it is effectively impossible to clean. But it is an 
invention rather than a commercial product. And yet 
troublingly, the United States has emerged as an international 
outlier in terms of refusing to provide a patent for this 
invention, not because the invention itself isn't deserving of 
protection, but because of how it was invented.
    I know that because I have been leading, on a pro bono 
basis, a series of legal test cases on the patentability of AI-
generated inventions and the copyrightability of AI-generated 
works, the outcome of which has sadly been to see U.S. courts 
adopt a strongly antipatent position. We didn't have a 
traditional human inventor in our case, so when we filed the 
applications, which we've now done in 18 jurisdictions, we 
transparently disclosed it was invented by an AI.
    Different jurisdictions have very different rules about 
inventorship. Some jurisdictions don't require inventors to be 
disclosed, others allow companies to be inventors, which is not 
so strange. The U.S. has allowed companies to be authors under 
the Copyright Act for more than a century. The United States 
has a strict test for inventorship. The person who conceived of 
an invention, and usually an inventor, has to sign a 
declaration under threat of criminal sanctions that they 
genuinely believe themselves to be an inventor.
    The Federal Circuit last year held for the first time in 
Thaler v. Vidal that if you don't have that traditional human 
inventor, you can't get a patent. Of course, no one was ever 
arguing that the AI would own the patent. Most inventions are 
not owned by inventors, but rather by their employers. An AI 
isn't a legal person, it can't own property, and I see no good 
reason to change the law to allow that. But it is a bedrock 
principle of property law that you own property made by your 
property.
    So if I have a 3D printer make a physical beverage 
container, I own that. There is no reason why I should be any 
less entitled to intangible property made by my AI. That's the 
right outcome, as a matter of policy, that the owner of an AI 
system should own inventions made by that system because the 
system is designed to provide incentives regardless of how 
inventions are made. Allowing this to be patented will provide 
encouragement to the use and development of inventive AI that 
will generate more socially valuable inventions. It will 
encourage the owners of these systems to disclose inventions 
rather than keep them as trade secrets. And it will encourage 
the investment needed to commercialize inventions.
    So what should Congress do? Amend the Patent Act to allow 
the protection of AI-generated inventions by prohibiting 
patentability from being based on how an invention is made. 
Designation of inventorship is less important than 
patentability, but it would be best to keep legal inventorship 
based on factual inventorship.
    In other words, where an AI has invented something, it 
should be disclosed that it is AI-generated. This will tell the 
public how it is made, it will facilitate ownership 
determinations, and it will keep people from claiming credit 
for work done by AI. That's not unfair to AI, which has no 
self-interest, but it's unfair to other inventors displaying 
legitimate ingenuity and by equating their work to someone just 
asking an AI to solve a problem.
    Protecting AI-generated inventions and AI inventorship is a 
simple, common-sense solution that will not cause other 
complications.
    And it is critical for Congress to act on this now, not 
just because of the state of AI today, but because investments 
need to be made now in the AI and innovation of tomorrow. And 
there is a universal consensus that AI is only going to get 
better at doing this sort of thing. If the right frameworks are 
in place, the outcome of that should be significant benefits 
for everyone. Thank you.
    [The prepared statement of Professor Abbott appears as a 
submission for the record.]
    Chair Coons. Thank you, Professor Abbott. Professor 
Villasenor. 

STATEMENT OF JOHN VILLASENOR, PROFESSOR OF LAW, ELECTRICAL  
  ENGINEERING, AND PUBLIC POLICY, AND FOUNDER AND FACULTY 
  CO-DIRECTOR, INSTITUTE FOR TECHNOLOGY, LAW, AND POLICY, 
  UNIVERSITY OF CALIFORNIA, LOS ANGELES, CALIFORNIA

    Professor Villasenor. Chair Coons, Ranking Member Tillis, 
Members of the Subcommittee, thank you for the opportunity to 
testify at today's hearing. I'm testifying today on my own 
behalf and not on behalf of any institution. When discussing 
the intersection of AI and patents, it's helpful to identify 
three categories.
    First, there can be patents about AI. Second, there can be 
patents describing inventions created using AI. And third, AI 
can be used to write patent applications or public disclosures 
intended to serve as prior art.
    Regarding patents about AI, my point is simple. The U.S. 
Patent and Trademark Office is well equipped to handle patent 
applications for inventions about AI and has been doing so for 
years.
    Now, the second category, inventions made using AI, poses a 
complex set of policy questions. First, should AI inventions be 
patentable? Second, how should inventorship be handled?
    I believe that AI inventions should be patentable, and that 
inventorship should be attributed to the natural persons who 
use AI as a tool to enhance their ability to innovate. More 
specifically, as I explained in a recent law review publication 
in the Santa Clara High Technology Law Journal, conception 
should encompass ideas formed through collaboration between a 
person and tools that act as extensions of their mind.
    To operationalize this approach, I believe that no 
statutory changes are needed. I believe that this view of 
conception is consistent with current U.S. patent law. Some 
people propose that AI systems should be named inventors. I 
respectfully disagree. First of all, as we know from the Thaler 
litigation, this would require a change to U.S. patent law. 
Many Members of Congress would be rightly concerned about the 
consequences of that change. There are other problems as well 
that would arise if that change were made.
    An AI system cannot provide the required inventor's oath or 
declaration that must accompany a utility patent application. 
An AI system cannot get deposed in litigation regarding an 
invention. It can't give sworn testimony.
    Another approach that has been proposed is to deem AI 
inventions wholly unpatentable. I do not support this approach. 
It would disincentivize investment in the use of AI in areas 
where it has high potential. For instance, a pharmaceutical 
company would be unlikely to make significant investments in 
AI-assisted drug development if it expected that any resulting 
drugs would be deemed unpatentable. It would create a new 
category of patent ineligibility based on having used too much 
AI when making an invention. The resulting ``How much is too 
much?'' question would generate years of confusion and 
litigation.
    The third and final category is the use of AI to write 
patent applications or preemptive prior art, publications 
designed to foreclose patentability. Let me emphasize here that 
the use of AI writing tools to help create explanatory text or 
figures regarding inventions is not inherently problematic. It 
is reasonable for an inventor to use AI as a timesaving tool 
for describing an invention.
    However, a problem arises when AI is used to describe 
alleged inventions for which there is no conception by a human. 
Computer algorithms, whether or not AI-enabled, can be used to 
write and publish large online disclosure databases intended to 
foreclose patentability. This idea is not new. There is at 
least one website in this category that has been online for 
multiple years.
    To the extent that such publications occur without any 
substantive nexus to human understanding of their contents, 
there is a good argument that they should not count as printed 
publications under 35 U.S.C. 102(a). The entire concept of 
prior art is tied to what a person of ordinary skill in the art 
would know. The person of ordinary skill is a hypothetical 
person who is presumed to know all prior art in the relevant 
field at the relevant time.
    But I do not believe that a person of ordinary skills 
knowledge should be so broad as to include purported art 
embedded in computer-generated text for which there is no 
evidence that any human has ever understood the significance.
    In closing, I will emphasize that AI has extraordinary 
promise. In the mid-21st century, maintaining U.S. global 
economic competitiveness will require that the United States be 
a leader in AI innovation. A patent system that incentivizes 
the use of AI to innovate is a key component of that 
leadership. Thank you, and I look forward to your questions.
    [The prepared statement of Professor Villasenor appears as 
a submission for the record.]
    Chair Coons. Thank you, Professor. Last but not least, 
certainly, Ms. Elluru.

STATEMENT OF RAMA ELLURU, SENIOR DIRECTOR, SOCIETY AND  
  INTELLECTUAL PROPERTY, SPECIAL COMPETITIVE STUDIES 
  PROJECT, WASHINGTON, DC 

    Ms. Elluru. Chairman Coons, Ranking Member Tillis, and 
Members of the Committee. Thank you for the honor to testify 
today. I'm here to discuss the implications of artificial 
intelligence on our intellectual property regime. Specifically, 
I want to share the IP recommendations from the final report of 
the National Security Commission on AI, the independent 
commission Congress created to provide recommendations for 
advancing the development of AI to further U.S. national 
security needs.
    The United States is in a global technology competition. 
The Chinese Communist Party understands that the way to achieve 
dominance is through supremacy in key emerging technologies. AI 
is at the center of this competition. I emphasize that AI is a 
foundational technology. AI will influence nearly every aspect 
of our lives, especially as generative AI becomes ubiquitous. 
AI is a technology like electricity, upon which other 
technologies are built.
    AI in combination with other technologies like faster 
semiconductors and biotechnology, will only accelerate our 
discoveries. We are in a race to develop the future of AI, a 
race we are in with China. This innovation competition will 
shape the world's future. The nations that hold the leadership 
and dominant market share in the combination of emerging 
technologies will be able to reinforce their societies and 
their economies, and importantly, assert geopolitical 
influence.
    Which nations and how these nations shape the development 
and adoption of these technologies will determine the 
geopolitical order. The United States must lead in the tech 
competition because at stake is a values competition. We want 
these technologies to be developed and used according to our 
standards and norms, which is the opposite of how China is 
using this innovation, such as surveillance of its citizens and 
oppression of minority groups. And we cannot do it alone. The 
United States, along with our many close partners and allies, 
must maintain our technology lead over China.
    So how does the United States retain its global tech 
leadership? We leverage the strength that has allowed the 
United States to outpace and outmatch every technology 
challenger we have faced over the past century. Our strength 
and power is American innovation. Intellectual property rights 
have historically been a critical lever in ensuring America's 
innovation leadership.
    America's IP regime has spurred American ingenuity since 
the 18th century with the 1790 Patent Act. The last major 
overhaul of the patent system was in the early 1950s, right 
before the field of AI emerged in 1956. Patents are property 
rights that incentivize new ideas and inventions by rewarding 
inventors for sharing valuable information with the public 
domain. These incentives are especially important now when the 
majority of funding and tech development in the United States 
is from the private sector.
    The NSCAI addressed the asymmetry in U.S. and PRC IP 
strategies in Chapter 12 of its final report. What can the 
United States do in practical terms to implement patent 
policies that promote AI innovation?
    First, the United States must recognize IP policy as a 
national priority and require the development of a 
comprehensive plan to reform and create IP policies that 
further our technology competitiveness goals.
    Second, we need an entity with IP expertise that can 
coordinate the various IP equities across our Government to 
develop and propose IP policies on an ongoing basis.
    Third, the United States must elevate and coordinate 
technology policy in the White House by empowering a single 
entity to implement a comprehensive technology strategy, a 
strategy that integrates IP proposals.
    Last, we must prioritize IP considerations that need to be 
assessed. The NSCAI proposed a non-exhaustive list of 10 IP 
considerations, which are included in my written testimony.
    Last, at the Special Competitive Studies Project, we are 
exploring a number of these considerations in partnership with 
the Renewing American Innovation Project at CSIS, which is 
headed by US--former USPTO Director Andrei Iancu. I'm happy to 
go into any of these topics during our discussion. Thank you 
again for the opportunity to be here today.
    [The prepared statement of Ms. Elluru appears as a 
submission for the record.]
    Chair Coons. Thank you, Ms. Elluru. We'll now begin a 5-
minute round of questions for the members of the panel who are 
here--Members of the Committee to ask members of the panel.
    If I might, Mr. Salsberg, just to open, could you speak a 
little bit more about the difference between non-generative AI 
and generative AI in the biotech field and why generative AI 
may raise patent law issues that other AI doesn't? In the 
example you gave of developing new molecules that might be 
useful in the fight against malaria, you referenced Jaeger.
    Why is Jaeger not an inventor in the example you gave when 
it was generating novel virtual molecules? And why are the 
human scientists the inventors, and the AI simply a tool?
    Mr. Salsberg. Thank you for the question, Senator. So all 
AI today, at least at Novartis, and I cannot speak for other 
fields, are tools that are trained on data to basically 
recognize patterns and apply them in new ways, either to 
existing data in the case of non-generative AI. So it's 
learning a pattern, then looking at our data, such as our 
compound library, or data from past clinical trials, or images 
of cells after different experiments, and trying to find a 
similar pattern there. That we call non-generative because, as 
the name implies, nothing new.
    Generative AI is basically doing the same thing. It is 
being taught a pattern. It's being taught to recognize it, but 
it's applying that pattern then to create something new or 
generate, I should say is a better word, something new. In the 
case of Jaeger, I think the reason why this raises concerns is 
because of the confusion between generation on the one hand and 
invention on the other.
    We would say they're not the same because Jaeger, at least 
in our example, is not an inventor, because both factually and 
legally, what it's doing is not equivalent to human 
inventorship. It neither identified a problem, at least in our 
case. In our case, the problem is malaria. Right? It was to 
design new malaria drugs. It didn't know that there was malaria 
out there. It was told, do a drug that does this. It didn't 
consider how to address the problem.
    It had to be seeded with 20--or taught first with 20,000 
examples of compounds, then seeded with three lead compounds 
that we know have antimalarial properties to teach it how to 
design a molecule. After that, the key point, I think, between 
invention and non-invention is an area of the law called--its 
recognition and appreciation. That is part and parcel of 
conception, and also just factually from common sense, we know 
that to be conscious, we have to recognize what's going on.
    We don't believe that at this point in time, even 
generative AI is recognizing anything that it is doing. Last 
point I'll make really quick. I know I'm short on time for your 
questions, but a lot has to be done after these molecules 
appear on a computer screen. They need to be validated. They 
need to be synthesized, which is actually not obvious or easy 
to do.
    Chair Coons. Understood.
    Mr. Salsberg. Yes.
    Chair Coons. Thank you. Ms. Sheridan, can you imagine a 
time in the relatively near future when AI will advance such 
that it really is possible for AI to generate meaningful 
inventions with no human intervention at all?
    Ms. Sheridan. Thank you for the question, Senator. It's in 
our written testimony that our current experience and what we 
expect to be the experience for, you know, the foreseeable 
future is no. The human involvement is so great at this point 
when AI is being used as a tool in the innovation process from 
start to finish.
    Chair Coons. You mentioned guidance from the PTO and 
inventorship would be really helpful. You expounded on that 
just a little bit. Is there anything you missed that you think 
we should hear about what that guidance from the Patent and 
Trademark Office should look like as we move forward in 
examining this intersection between patent law and AI?
    Ms. Sheridan. I would have it really look at two big 
things. One, it should be broader than AI. I think AI is 
creating this conversation, but I think inventorship is 
challenging. So I think that guidance should more broadly 
encompass AI usage, but also other tools. You know there are 
computer simulations. There are other things that are being 
used in the innovation process.
    And I think, too, it really should give comfort to 
inventors that they are doing their best to memorialize the 
inventorship for their patent applications and, you know, 
taking a position from the PTO in terms of what we're talking 
about with joint inventorship, that the humans are properly 
named.
    Chair Coons. Professor Abbott, you mentioned--you've led or 
managed I think it's 18 now foreign patent cases involving Dr. 
Thaler's AI-generated inventions. And you called the United 
States an outlier in failing to recognize inventions that are 
AI-generated for patent protection. What are the consequences 
of that? What do you see as the costs or the risks to the U.S. 
system? And you asserted that it wouldn't cause any other 
complications for us to modify patent law in a way that allows 
essentially co-invention.
    I'd be interested in whether other members of the panel 
agree, and if you'd address my question about what are the 
consequences of our being an outlier.
    Professor Abbott. Sure. Well, I mean, I think the most 
pressing commercial problem here is not where you have co-
invention, although that can sometimes be an issue, but where 
you don't have a traditional human inventor you could identify. 
And I agree, in Mr. Salsberg's example, you have that or a good 
argument for it, where you do have a lot of human intervention 
and there's always human intervention. The question is, under 
inventorship law, there's a thing that someone does that makes 
them an inventor.
    And sometimes that thing is now being done by a machine, 
and perhaps not that much right now, but it is increasingly 
going to be the case that AI is doing this, that companies like 
Microsoft are pretraining these drug-seeking AIs on how to 
generate new molecules and how to validate them. You can have 
AI that will evaluate the utility of its own output.
    When you are, for example, modeling industrial components 
and you know, I want an industrial component that is lighter or 
that is longer or that meets some preset criteria that's well 
understood in the art. So as AI----
    Chair Coons. So in your instance, was it simply a failure 
to instruct that the container should be easily cleanable?
    [Laughter.]
    Professor Abbott. Well, if someone was now making--you 
know, one can get a lot of patents on a single product. Right? 
So it might be that this was the first product. Someone uses 
that and says, ``You know what? This is great, but I need it to 
also be cleanable, so how can we redesign it for that?'' And if 
a person did that, they might be an inventor on that second 
patent. You know, but basically, it's all a question of degree 
and what specific input a person has into invention, but the--
--
    Chair Coons. What are the consequences of our being an 
outlier?
    Professor Abbott. The consequences are that companies will 
be discouraged to use AI in the invention process because it 
will risk them getting patents on their inventions. Right? And 
that will depend very much on the field in which AI is being 
used, the systems being used, and the specific facts of how 
this is done.
    Chair Coons. Thank you. I have a lot more questions for the 
panel. But respecting that I'm already over time, I'll yield to 
my Ranking Member.
    Senator Tillis. I think I would have started by asking AI 
how I could develop an accessory that I could pay for--that I 
could sell, after I sell the bottle, that cleans it very well.
    [Laughter.]
    Senator Tillis. I'm sure somebody's probably already 
working on that. Ms. Elluru, you--did I pronounce that right?
    Ms. Elluru. Correct.
    Senator Tillis. Tell me a little bit about your current 
assessment of--you and your opening comments were talking about 
really Western world versus China in this competition. Where 
are we now in terms of the pacing threat of China surpassing 
us, or have they?
    Ms. Elluru. I think the U.S. is in the lead with respect to 
AI, but barely. Had the U.S. as leading in cutting-edge chip 
design, but manufacturing of semiconductors is still a 
contested space with Taiwan at the center. I think the U.S. is 
forefront in novel algorithms and architecture, and it has the 
frontier large language models. But China is leading in data in 
part due to its pervasive domestic governance and collection 
regime.
    And I think with respect to large language models, it is a 
little bit hindered because these large language models are 
trained on the internet, and the internet is mostly in English. 
They also have censorship, which constrains their access to 
data.
    Senator Tillis. You also mentioned in your opening 
testimony--you didn't use these words, but I inferred from it 
that you feel like the administration needs a kind of whole-of-
Government view with respect to AI? But would you elaborate on 
that? What would that look like?
    Ms. Elluru. I think, as we recommended at the NSCAI, that 
we need a single entity with IP expertise that can coordinate, 
and importantly, unify the different IP equities across the 
Government. And we recommended that that sit with the United 
States PTO Director as well as the Department of Commerce 
Secretary, and that other Federal Government agencies and 
departments resource efforts and--resource their efforts to 
support that, this PTO Director.
    Senator Tillis. Mr. Salsberg, you mentioned in your 
testimony clarifying the law surrounding conception would 
restore certainty. Can you state that if too narrowly 
construed, the law could potentially be misapplied to deprive 
human inventors of legitimate patent rights to their own 
inventions?
    Mr. Salsberg. Yes, we do believe that if it's too rigidly 
applied, that could be the result, because we have a standard 
that has been established in a different context. It was about 
priority of inventorship, meaning which of two inventors 
invented first. For 100 years, we've had a law developed that 
looks at what happens in the mind of the inventor. And we 
believe that that is way too rigid of a standard.
    But we also think that existing law has multiple principles 
available. I know to be very brief in my answer, but there's a 
case called Morse v. Porter which says that as long as an 
inventor has intellectual domination over the process, you can 
even adopt key ideas from outside. And also, if you don't 
recognize, appreciate, and have an operable invention at the 
time that it is created, it is not actually conceived until 
someone else recognizes and appreciates it.
    So, we think combining these doctrines together--and 
there's a bunch of cases in our written testimony that stand 
for these propositions--if the courts and Patent Office apply 
this properly, we can resolve that issue under existing law.
    Senator Tillis. Just briefly, could you explain how we 
compare to other countries, other jurisdictions?
    Mr. Salsberg. Yes. We're the only country in the world, to 
the best of my knowledge, that has anything like a conception 
requirement. In much of the world, you don't even need to--you 
never even get asked about inventorship. Many countries, you 
list an inventor and it's just of your own accord. It only 
comes up in situations where a remuneration dispute or a joint 
inventorship dispute comes up. Some countries don't even 
require you to list an inventor, like Israel and Austria.
    Senator Tillis. Final question, I may also stick around and 
ask some further--not a question, but you know, it feels like 
to me, in everything that we do on Capitol Hill, we're doing 
well when we're providing certainty in various areas. And I 
feel like if we don't tackle these IP issues, that we are 
likely to be the jurisdiction where these inventions occur. 
Would anybody disagree with that? I mean, there is work that we 
have to do.
    There are some that are saying it can work within the 
current law, but I, for one, feel like we have to have 
certainty and clarity, or we really run the risk of having the 
gap. Maybe our competitive advantage today will not be the same 
just a few short years from now, given the pace, the rate of 
change that we're observing in AI space. Anybody disagree with 
that? That it's not broke, don't fix it. We've got something 
we've got to work on here. Professor Villasenor?
    Professor Villasenor. As I've argued in the law review 
article I mentioned, and in the testimony, I think U.S. patent 
law already accommodates AI inventions and that the inventor 
should be the human who uses the AI as a tool, as an extension 
of their mind. I think that's consistent with the understanding 
of conception that's been in place since--and actually 
conception is not defined in Title 35. It actually comes from 
an 1890 treatise by Robinson, and the Federal Circuit has cited 
that as recently as, I believe, 2021.
    And I think just viewing the conception through that 
broader lens, consistent with that original, commonly cited 
definition, is enough to encompass and take account of 
inventions made using AI.
    Senator Tillis. Yes, I think my concern is, if we don't 
identify some of the bigger threats here and provide clarity, 
this could be sorted out in the courts. Which is one of the 
reasons why we're working on patent reform because we have a 
lot of really bad decisions that came out of the courts with 
people who really didn't understand the underlying concepts of 
the case they were overseeing. Thank you, Mr. Chair.
    Chair Coons. Thank you, Senator Tillis. Senator Hirono.
    Senator Hirono. Thank you, Mr. Chairman. So, the thing with 
AI is that it is being developed, the use of AI, through so 
many--in so many different ways is happening by leaps and 
bounds. And as we sit here struggling to figure out a way to 
regulate AI in an appropriate way without really discouraging 
invention, etc., it's not the easiest thing to try to decide 
what to do. And in fact, none of you mentioned the, for 
example, the White House blueprint for an AI Bill of Rights and 
the Bill of Rights that individuals should have.
    And as we sit here knowing that some entity out there can 
replicate our voices, put out a campaign ad that we've had 
nothing to do with, and what are we supposed to do about that? 
We have no awareness of it. We don't even know if this was an 
AI-generated thing. So, the implications are vast on how we 
should be regulating AI. We just know we should, can't decide 
what to do quite yet. But it's interesting to hear your 
testimony about what should be patentable and after the Thaler 
decision, where it seems very clear that the human element has 
to be there in order for something to be patented.
    Except, I believe, Mr. Abbott, you know, your approach 
seems to be so simple. Whoever owns the AI system should own 
whatever is invented through that system. I'd like to know from 
the rest of the panelists whether that is the way we should go, 
in spite of the Thaler decision. Let's start with you, Mr. 
Salsberg.
    Mr. Salsberg. Thank you for the question, Senator. That is 
one option. If and when we get to the point where AI is truly 
inventing. As I said in my testimony, we're not sure we're 
there yet, but if and when we get there, we totally----
    Senator Hirono. Well, things are moving so fast that I can 
envision that we're going to get there. So, go ahead.
    Mr. Salsberg. And when we get there, we're in full 
agreement that we do need to make sure that patents still issue 
to those who use AI to create useful inventions for society and 
promoting progress. We think there are three ways to address 
it, though. One is to award a patent to AI. Another is to 
simply change our inventorship standards and expand what it 
means to invent. And we believe, again, we can get there by 
taking existing principles of conception law and applying them 
properly.
    And if that doesn't work, we also think we can eliminate 
the inventorship requirement in most situations and get to the 
same result without having impact on other aspects of patent 
law, such as the level of ordinary skill in the art of an AI 
and the inventor's oath and things like that.
    Senator Hirono. Ms. Sheridan.
    Ms. Sheridan. Thank you for the question. You know I agree 
with Mr. Salsberg. Our current experience is the human is very 
much involved. The human is the inventor. I have kind of two 
concerns with the approach of going with, you know, the system 
being an inventor or the ownership vesting in the owner of the 
system. I think one just sort of sits with the Constitution and 
the--really the reason for the patent system, which is to 
incentivize the behavior of humans to innovate.
    And you know, I question whether that incentive is needed 
for an AI system. I think that's not really the purpose of the 
patent system in the first place. So I would want to think more 
about, does that line up with the purpose of the system.
    I think the other question, though, which is more the one 
that would keep me up at night is obviousness. You know, 
inventions need to be nonobvious, and if you have this ability 
for an AI to be named, what does that mean for the obviousness 
test? Where is the bar? And who are you kind of measuring this 
against? And how does a patent examiner, one of 8,000 in the 
PTO's workforce, apply that?
    So, I think there are a lot of open questions that would 
come up from what seems to be a simple fix.
    Senator Hirono. I'm going to move on to Mr. Villasenor.
    Professor Villasenor. Yes, very briefly, I'll just say that 
everything an AI system does is ultimately traceable back to 
one or more people. And I think that when we focus only on the 
AI system, we miss potentially the incredibly important and 
relevant in this context, contributions of the people who have 
ultimately enabled an AI system to do what it does.
    Senator Hirono. So you're not particularly troubled by the 
idea that whoever owns the system should own whatever the 
system generates?
    Professor Villasenor. Well, actually, I am in the sense--in 
the sense that I think the owner--I mean, whoever owns the 
system shouldn't be the dispositive question. Again, I believe 
that the people who use AI as extensions of their minds should 
be the inventors. And that would be true even if they, for 
example, you know, leased under a contract, an AI system that 
they use to expand their creative capacities.
    Senator Hirono. Mr. Chairman, could I ask Ms. Elluru, too?
    Chair Coons. Absolutely. You got it.
    Ms. Elluru. Thank you, Senator. I have two comments to 
make, and the first one is open source. If we recognize patent 
owners as having the right, what happens when a user uses open 
source models to invent? And the second comment is, with 
respect to obviousness, I think that AI is going to be commonly 
used in the invention-creation process. So, I think we will 
have the obviousness issue regardless of whether we recognize 
AI as an inventor or not.
    Senator Hirono. Thank you, Mr. Chairman.
    Chair Coons. Thank you, Senator Hirono. Senator Blackburn.
    Senator Blackburn. Thank you, Mr. Chairman. Thank you to 
each of you for being here and for your testimony. And I so 
appreciate that we are looking at this issue. I'm from 
Tennessee. We have a lot of entertainers. The voice cloning is 
an issue. ChatGPT, being able to write a song that sounds like 
it would be in the style of so-and-so, some artist--that's an 
issue. And making certain that we're able to preserve these 
intellectual property rights is--this is coming up a lot as we 
talk with our entertainment community.
    And then also, we have a lot of people that are doing work 
in the energy space, automobile manufacturers, and they're 
busy. Ford has done a huge investment in Tennessee with SK 
batteries, billions of dollars there. GM has its Ultium battery 
facility in Tennessee. Now, these innovators are saying, ``I 
want to hold my invention.''
    And of course, China, which we've discussed some today, is 
a pro at lifting intellectual property and not protecting that 
intellectual property. And I look at what they're doing, 
stealing it, our intellectual property, the emergence of China, 
and their aggressiveness in the field of AI. And Ms. Elluru, I 
want to come to you on this. I pulled a number, 2021. China was 
the global leader for patent filings, and they had 1.59 million 
filings. They were double us. Then 2011 to 2021, Chinese AI-
related patents accounted for nearly 75 percent of the global 
total. That should be a wake-up call to every one of us, 
especially those of us that represent so many innovators.
    And I decided to go on and look at what was happening with 
PTAB because so many of our innovators have their patents 
challenged. And China has been very aggressive using this. And 
primarily ZTE and Huawei are the companies that are the 
leaders, if you will, in challenging U.S. patents.
    So, Ms. Elluru, as we look at this and we look at the 
global marketplace, I want you to go a little bit further than 
you did in your response with Senator Tillis and talk for a 
minute about that threat that is there with China trying to 
dominate in this space to the point that they've doubled our 
number of filings.
    They've got 75 percent of that global share, and then 
they're coming at it from the other angle, trying to discredit 
our patents.
    Ms. Elluru. Thank you, Senator, for that question. I think 
with respect to China's prolific patent filing, quantity does 
not always equate with quality. However, there are implications 
with those numbers. First, they're using it as a narrative that 
they're winning the tech competition.
    Senator Blackburn. Well, and that they're kind of blocking 
competitors. Right?
    Ms. Elluru. Absolutely. And so I think there's a real 
parties in interest issue, too, with China abusing--using our 
system against us.
    Senator Blackburn. I agree with that. And I think it's why 
we have got to push back on that narrative, because of the 
numbers and the way they're trying to be the first to file in 
certain areas.
    Ms. Elluru. Agreed.
    Senator Blackburn. Yes, I have quite a few concerns about 
that. And what they're going to do with really pushing through 
on this system and using the system of protection we have to 
advantage themselves. I do want to move to one other thing. I'd 
like for you to speak for just a minute about what we do to 
counter this aggressiveness. As you look at it, what steps 
would you say we need to take? And anybody else after Ms. 
Elluru weighs in on this, anybody else that has a suggestion, 
I'd love to hear that.
    Ms. Elluru. Thank you, Senator. I think the first thing we 
need to do is recognize IP policy as a national security 
priority across our departments and agencies. And as I 
mentioned earlier, we need a central entity----
    Senator Blackburn. Yes. I heard you say.
    Ms. Elluru [continuing]. With IP expertise that can 
coordinate across the Government.
    Senator Blackburn. Okay. Anyone else? Anything to add?
    Mr. Salsberg. Yes. Thank you, Senator.
    Senator Blackburn. Mr. Salsberg.
    Mr. Salsberg. I would just quickly add that we should fix 
patent eligibility under Section 101 for both software and 
diagnostics.
    Senator Blackburn. Okay.
    Mr. Salsberg. And two, we should clarify conception law, if 
the courts--and this body should do it if the courts in the 
Patent Office don't apply it properly to make sure that the use 
of AI is encouraged and adopted by American innovators.
    Senator Blackburn. Okay. Anything else from any of you? No. 
Thank you, Mr. Chairman.
    Chair Coons. Thank you, Senator Blackburn. Senator Padilla.
    Senator Padilla. Let me begin by just thanking you, Mr. 
Chair, for holding this hearing and a special welcome to the 
majority of the witness panel that are Californians. Not a 
coincidence. Certainly a timely topic, since our innovation 
ecosystem should be a prominent element of our ongoing AI 
development and regulatory discussions taking place here in 
Congress and within the administration. And our patent laws 
obviously play a significant and vital role in shaping that 
ecosystem.
    I know there's growing anxiety about AI systems and tools' 
potential to replace or displace the work being done by humans. 
And the questions raised today about how much invention needs 
to come from humans to preserve intellectual property rights 
mirrors actually some of the discussion taking place in the 
world of copyright law. So, I want to take the time--take time 
right now to ask about how AI is impacting human invention and 
innovation, and I want, to help us focus that discussion, cite 
Stanford's AI Index 2023 Annual Report. Quote, ``AI models are 
starting to rapidly accelerate scientific progress and in 2022 
were used to aid hydrogen fusion, improve the efficiency of 
matrix manipulation, and generate new antibodies.'' So, clearly 
AI has been, and should continue to be, a great tool for 
invention and discovery.
    I know I've said a lot, that's just to tee up the following 
question and I'll address it to Ms. Sheridan. Can you speak to 
the way AI is helping not just your company, but the industry, 
invent? And under current U.S. patent law, as you understand 
it, how does the use of AI affect the ability of your 
respective industries to patent those inventions?
    Ms. Sheridan. Thank you for the question. So, I mean, in 
our observations and use of AI, it's really been a powerful 
tool in the inventing process. We create machine learning 
models and then we're able to use those models in further 
development, whether it's for chip floor planning or neural 
network architecture search. So it's been an incredibly 
important tool to us. I think there's two topics here.
    One is the use of AI as a tool for innovation, and then 
there is simply the topic of AI innovation in general and 
making sure that the system is both balanced to encourage both 
of those things. And the conversation we're having around 
inventorship that really relates to this question of using AI 
as a tool in the innovation process and the conversation we 
have just around the general patent system and making sure it's 
striking the right balance, that's for innovation writ large.
    And I think I--there's a statistic from an IEEE report that 
shows, you know, 70 percent of all AI patents are held by U.S. 
companies as of 2018. And I think that really shows right now 
in the U.S. innovation in AI is growing, it is flourishing. And 
we have patenting activity that reflects that, both in the core 
AI innovations, but also in the use of AI as a tool to 
innovate.
    Senator Padilla. Thank you. Clearly much to continue 
discuss on that point, but also want to make sure I talk about 
the innovation trends that we're seeing. AI innovation has 
grown at a rapid pace. We all acknowledge that. And the use of 
AI by innovators, as Ms. Sheridan just referenced, whether it's 
individuals to startups to large enterprises, is also growing 
rapidly.
    One study found that AI will potentially contribute $15.7 
trillion to the global economy by 2030. But the Patent Office 
has found that the volume and the share of public U.S. AI 
inventions has grown significantly in the last decade alone, 
more than 15 percent of all published patent applications in 
2020 were directed to AI technologies, equivalent to almost 
80,000 patent applications, just to give you a flavor for the 
volume here. And there's been a tremendous investment, 
obviously, in artificial intelligence R&D among U.S. companies.
    Question for Ms. Elluru and Ms. Sheridan: Do you believe 
our current innovation ecosystem, including our patent laws, 
are incentivizing AI-related innovation? Or how else would we 
interpret the increase in AI patent applications?
    Ms. Elluru. Thank you, Senator, for that question. I think 
there's a lot of uncertainty in our patent laws currently with 
respect to patent eligibility, also with respect to whether AI-
generated inventions are patentable. I think that the common 
view right now is that AI is a tool, a very sophisticated tool 
that's used in the invention-creation process. I think some 
people would say that you still need an inventor to frame the 
problem set, analyze the output of the AI, recognize and 
appreciate the results.
    But I think an argument can also be made, especially in 
litigation, that the AI is contributing to the conception 
process itself. It's augmenting or supplanting cognitive 
capabilities. And under current law, an AI machine cannot be an 
inventor. So the argument would be that the AI machine was a 
co-inventor, but it cannot be an inventor. So under current 
laws, that's unpatentable. And I think that uncertainty leaves 
to unpredictability, and it diminishes the patent system. Thank 
you.
    Senator Padilla. Ms. Sheridan.
    Ms. Sheridan. Thank you for the question. We have seen AI 
innovation flourishing, and I think the patent numbers are one 
thing that reflects that. There are other ways we see it in the 
investment. You mentioned the growth of the economy, but it's 
really important, and I mentioned this in my opening statement, 
that training is in place for examiners because you mentioned a 
statistic about the growth in AI patenting at the Office. That 
means, at some point, the majority of patent examiners are 
going to get an invention that crosses their desk that relates 
to AI in some way.
    And they may not be experts in AI. They're experts in the 
field that AI is being applied. And it is critically important 
to make sure that examiner knows what they're looking at and 
knows, yes, this is a deserving patent, I can grant this, or 
no, this is an obviousness issue, or whatever it might be. 
Training is really just a fundamental issue that to continue to 
incentivize this level of innovation, which we already have, we 
need to make sure that PTO examiners are given the tools that 
they need.
    Senator Padilla. Thank you. And last, just a comment to 
Professor Abbott. Please don't show that cup to my kids, 
because no doubt they're going to want to put their fruit 
smoothies in there, and then I'm going to be stuck scrubbing it 
out. Thank you, Mr. Chair.
    Professor Abbott. Well, Senator, very briefly, on behalf of 
the California academic contingent, thank you for having us and 
for not inviting anyone from USC.
    [Laughter.]
    Chair Coons. Thank you. Thank you, Senator Padilla. Senator 
Blumenthal.
    Senator Blumenthal. Not going there. But I am going to make 
a very non-scientific observation here, at great risk, I must 
say, because it could lead to unwarranted conclusions. But I 
would say, looking at the audience in this room and the group 
waiting outside to get into the room, that the average age of 
our audience is roughly one-half the average age of United 
States Senators.
    Senator Tillis. Senator Blumenthal, we confirmed that. I 
had a show of hands.
    [Laughter.]
    Senator Tillis. There's only one in the audience who's over 
the age of 35.
    Senator Blumenthal. Which is enormously exciting for me. 
And I make this statement not out of any ageism, but I 
guarantee that in China or in many of the other countries that 
are potential competitors, there are not groups like this one 
voluntarily--voluntarily pursuing research, innovation, 
invention in this area and coming all the way from other parts 
of the country to listen to this kind of proceeding. So, I want 
to thank you all for being here today.
    And when I thank you, I'm thanking literally thousands, 
tens of thousands, hundreds of thousands of young people who 
are studying this area and who will be the source of invention. 
And you're right, Ms. Sheridan, AI invention and innovation are 
flourishing in this country, which should be a source of pride 
and excitement to my colleagues and myself. Which brings me to 
my first question.
    A number of experts in the industry have suggested we ought 
to have some kind of pause on innovation or on the release of 
new products, put aside the issue of testing them. Even if I 
thought it were a good idea, I don't. I think the idea of a 
pause is totally impractical. So, let me ask any of you whether 
you think a pause on AI--I know it's a somewhat simplistic 
question, is a good idea and even doable?
    Professor Abbott. Well, just to briefly address that, 
although I think you addressed it yourself a bit. I think the 
biggest reason a pause would be bad, as Senator Tillis 
mentioned, is a lot of social good is going to come out of AI, 
and with the right frameworks in place, predominantly good 
rather than risk. And pausing it means that we're not going to 
get this innovation and creativity and value from AI that we 
otherwise get. On top of which, I don't think you really could 
enforce a pause. And on top of that, other jurisdictions are 
not going to similarly pause so----
    Senator Blumenthal. That's my next--unless anybody 
disagrees, just in the interest of time, I'm going to move to 
my next question. Yes, sir?
    Professor Villasenor. Well, I was just going to say I agree 
that it would be a bad idea for many of the same reasons, 
totally unenforceable, and I could list lots of reasons why 
it's a bad idea. I don't support the idea of a pause.
    Senator Blumenthal. And the ones who would love it the most 
are the Chinese, our competitors in other jurisdictions, as 
you've said, Mr. Abbott. So it's a bad idea for a lot of 
reasons, and it's impractical and unenforceable. I want to ask 
a question because you mentioned the word framework, Mr. 
Abbott.
    And in a hearing that Senator Hawley and I had in a 
different Subcommittee of the Judiciary Committee, the Privacy 
and Tech Committee, we focused a lot on this idea of a new 
agency, licensing and registration, guardrails and safeguards, 
like, maybe what I call the nutrition label, means of 
distinguishing and stopping deep fakes, audio clones, and so 
forth. Some of the bad outcomes of AI innovation. I have in 
mind a framework, probably a new agency that would not in any 
way impinge on the current patent system.
    Do you think that kind of new agency is compatible with our 
current intellectual property protection system? I'm going to 
open it to anyone who wants to respond.
    Ms. Elluru. Thank you for that question, Senator. I think 
that we need to use existing regulators to adopt AI regulation 
with existing authorities as in the short and medium term, but 
I think also exploring the new agency--a new AI agency and its 
functions is a great idea. I think it'll take time. So I don't 
think those two recommendations are mutually exclusive, and I 
think we need to pursue both at the same time.
    Professor Villasenor. I'll just say I think it's important 
to recognize the protections we already have under broader 
existing frameworks. For example, if a company uses an AI 
system to make hiring decisions in a manner that discriminates 
based on a protected characteristic, that would already be 
unlawful under Title VII of the Civil Rights Act of 1964. So we 
already have a lot of the frameworks that would apply to AI, 
even though they are not AI-specific.
    Senator Blumenthal. Mr. Abbott.
    Professor Abbott. Just to briefly weigh into that, I mean, 
I think you are completely correct that it is the Government's 
responsibility at some level to manage some of these risks for 
the public and that having an administrative agency dedicated 
to that would be helpful. I do think that as a general matter, 
a technologically neutral approach to the issue is the right 
way to go.
    So, for example, if we want to, and we do prohibit 
discrimination based on protected characteristics, that there 
are laws that apply to companies doing that, whether you have a 
human resource manager or an AI system operating to do that 
sort of thing. You know, so I think in principle it's a good 
idea, but very much depends on the details of how it's 
implemented.
    Senator Blumenthal. Thank you. Ms. Sheridan or Mr. 
Salsberg, do you have observations? I'm going a little bit over 
my time.
    Mr. Salsberg. Sure, I agree with the other speakers. I 
would just add that it's also important that we make sure that 
there's public sector and private sector collaboration in 
forming this kind of commission, or at least into the input 
because we also want to make sure that we're not undermining 
innovation. And I would also add just one more point, which is 
that there are other agencies, like FDA in the case of our 
industry, that are already looking at these issues, and it's 
very important that they continue to be a part of this.
    One statistic is that over 100 applications to FDA in 2021 
have already contained AI or machine learning components. So 
they're already looking to these issues. And if we had a new 
commission, we'd have to make sure there's coordination between 
those agencies.
    Ms. Sheridan. Thank you. I'll keep it very briefly. So our 
CEO has said AI is too important not to regulate, and it's too 
important not to regulate well. I think our view of regulation 
as a sectoral approach, is appropriate, and when it comes to 
patents, that would mean the Patent Office kind of handles 
issues related to patent policy. But we do believe it's--
regulation is important.
    Senator Blumenthal. I welcome all of these comments and 
this hearing and the one that my Subcommittee did, I regard as 
just the beginning. And I hope that we can call on all five of 
you and many others to be involved, because we do, to take Mr. 
Salsberg's point, want to regulate. I think everyone has agreed 
regulation is necessary, maybe through some kind of Federal 
agency, call it an administrative agency.
    But we also want to continue to encourage innovation and 
the startups and the folks who are in this room who are going 
to be inventing stuff in their parents' garages, not to 
deprecate anybody who's in this room, but, as you know, that is 
a well-founded source of innovation in this country. And we 
want to make sure that we don't heavy-handedly deprecate or 
discourage innovation. Thanks, Mr. Chairman.
    Chair Coons. Thank you, Senator Blumenthal. Before I defer 
to Senator Tillis to begin a second round, I just want to 
follow up on that point, if I could, because one of my concerns 
about how we regulate AI is that we may end up favoring well-
funded and established companies and make it dramatically more 
difficult for the startup, the innovator, the category breaker, 
smaller companies that are the backbone, often of American 
innovation, to compete.
    I'd be interested in any brief comments from the panel on 
how you think we strike that balance. How do we regulate AI 
responsibly without hampering innovation? Ms. Elluru, do you 
want to begin? And I'll just welcome any brief comments from 
members of the panel.
    Ms. Elluru. Thank you, Senator. I think we do so very 
carefully. One of the things that we've recommended at the 
Special Competitive Studies Project is that we focus our 
governance efforts on high-consequence use cases. To going to 
Senator Tillis' comments earlier, AI can have benefits as well 
as harms, and we need to focus our efforts on those benefits 
and harms that are going to have the most significant impacts 
on societies and individuals. So it is a risk-based approach, 
and we need an American model of identifying what high-
consequence use cases look like.
    Professor Villasenor. I'll just say that, as we all know, 
new market entrants, new companies have been the source of an 
incredibly large amount of innovation historically in the 
technology space in the United States. And there's no reason to 
believe that's going to change at all in the sense of AI.
    And given that, it would be a mistake to implement a 
regulatory regime that, as the Senator, as you said, favors the 
large, well-funded incumbents who have the resources to comply 
with very burdensome regulation while disfavoring the new 
market entrants who are going to be the future Googles of the 
world.
    Chair Coons. Thank you. Professor Abbott.
    Professor Abbott. I might make a broader point, which is 
that I think when confronted by this technological evolution 
and how it's challenging current laws, that you should take a 
step back and think, you know, what is the purpose of patent 
law and what is it that we want to do. Right?
    Someone earlier said, well, it's to benefit inventors, you 
know, in copyright law, for example, despite the Copyright 
Clause of the Constitution, the U.S Supreme Court has held 
copyright law is not primarily to benefit authors, it's 
primarily to benefit the American public by encouraging the 
creation and dissemination of new works. So do we want a patent 
law that is going to specifically encourage human behavior and 
discourage people automating?
    Do we want something that's going to benefit small 
companies over more than bigger ones, or do we want something 
that's just going to generate more public good and more 
innovation? You know, I think the right place is for Congress 
to decide what the goals of the system are and then, you know, 
implementing it follows from that.
    Chair Coons. Yes. The point that Professor Villasenor just 
made was historically across technology broadly, if you come up 
with a system that disfavors the innovator, the small, the 
startup, then you will, as a consequence, have less innovation. 
Would you disagree with that as----
    Professor Abbott. No, I agree with that. I took his point 
also to be, you know, the more regulatory requirements you 
place, it tends to be more burdensome on small and medium 
enterprises than companies like Novartis and Google that have 
large teams of people that can help comply with this sort of 
thing. So, you know, that sort of approach, I think, is more 
warranted the higher risk use you're looking at.
    Chair Coons. Thank you. Ms. Sheridan.
    Ms. Sheridan. Yes, you know, to bring this into a patent 
context, I think I support something as simple as fee 
increases, and I mentioned that in my opening statement. But I 
think if you want to make sure that small and micro entities 
before the Patent Office have, you know, a robust examination 
when they have that AI innovation before an examiner, you need 
to make sure the Office has enough fees to do that examination, 
and large companies like Google can support that and make sure 
that the resources available to the Patent Office are greater 
upfront.
    Chair Coons. And of course, we need to permanently end the 
pernicious practice of fee diversion.
    Ms. Sheridan. We would agree that that would certainly be a 
good thing to do.
    Chair Coons. One of my goals in getting elected to the 
Senate, literally. Mr. Salsberg.
    Mr. Salsberg. Yes, thank you. I would just echo the 
importance of following a fact-based and a risk-based approach 
to this to strike the right balance, and also the importance of 
involving the different entities within the private sector in 
that conversation. I think it's critically important. Last 
point I'd make is the risk-based approach is roughly what I 
believe the European Commission is following in its proposed 
AI--the AI Act. It's not a perfect Act, but that is the general 
approach. And I do think it needs to be tailored to the 
specific risks identified in each application of AI.
    Chair Coons. Thank you. Senator Tillis.
    Senator Tillis. I'm just imagining the scene of where 
you're on the stump campaigning for the Senate, the applause 
line when you talk about ending fee diversion. I'm sure that's 
a crowd-pleaser.
    [Laughter.]
    Senator Blumenthal. They'd probably applaud the diversion.
    [Laughter.]
    Senator Tillis. But you know, back to Senator Blumenthal, 
he looked at the crowd much the way I did, and it's good news 
to see young people focused on this subject.
    I think one thing we have to do here is educate the Members 
of Congress well in advance of making any policies that could 
have a significant impact on regulatory burden or regulatory 
certainty.
    And I am pleased to hear, I think, that the House--the 
Speaker, has actually had a course curriculum put together by 
an East Coast institution to educate our Members on AI policy 
implications--and I think also quantum computing. I'm going to 
reach out and see if that's something that we can get here. I'm 
actually going to another meeting here on AI with Senator 
Warner shortly. And one of the subjects that we're talking 
about are the possible results from improperly developed and 
secured models. We haven't talked about this here, but that's 
another thing that we can't assume that all AI engines are 
equal, all of them are fully vetted, all of them are safe.
    I mean, that's a completely different--outside of the 
jurisdiction of Judiciary Committee, but something we have to 
look at and get a light touch, but start recognizing those 
outcomes.
    Ms. Sheridan, I should have mentioned to you--I mentioned 
that I'm in the ChatGPT beta program, but I have also explored 
Google's offerings, Microsoft's adaptation of ChatGPT, and the 
dozens of other engines that are out there. One of the things 
I'm trying to wrap my head around and honestly, it came to me 
as I heard you all talking, is explain to me how--I'm in the 
group of let all inventors invent.
    I don't care how big you are, I don't care what scale you 
have. Let's just have a healthy ecosystem with a lot of mom-
and-pop shops and individuals having a level playing field. But 
it would just seem to me, as this space evolves, that there 
would--in some respects am I wrong in thinking that this could 
be a great enabler for the mom-and-pop shop, the people that 
don't--I worked at Wang Laboratories up in Boston in my 
research and development. We had floors of computer scientists 
and engineers working on things.
    It seems like this becomes an invaluable resource to a 
handful of really smart people without a lot of capital to 
accelerate. Am I missing that, or would you all generally agree 
with that? Where's the risk to the small inventor that I'm 
missing?
    Ms. Elluru. As I said in my opening statement, I think that 
AI is going to be very ubiquitous in the invention-creation 
process and just use--and so I think it will raise the boats 
for everyone, and I think it will make mom-and-pop businesses 
much more productive and efficient as well.
    Professor Villasenor. I'll just say, I think that one of 
the really amazing things about AI is it does help democratize 
the innovation process.
    Senator Tillis. Exactly the word I've used.
    Professor Villasenor. Yes. It puts in the hands of a far 
greater number of people, including people who wouldn't 
necessarily have had the funds to do these things before, an 
enormously powerful set of tools to innovate. And I think, you 
know, if we play our cards right with the policy side of it, we 
as a country will benefit from that.
    Senator Tillis. Mr. Abbott.
    Professor Abbott. You know, I would agree with that. And 
mentioned that Dr. Thaler's business is a small business 
located in the Midwest, and you know, we've seen this, 
particularly with the generative AI systems and copyright. You 
know, now, I can make creative things that I couldn't have made 
before if I wasn't a major motion picture. I mean, they're 
still pretty bad, but I have these tools and I can make 
something with them.
    Ms. Sheridan. I agree. And we're seeing how it can be 
useful in the patenting process itself in terms of drafting of 
an application, you know, how can these tools be used to help 
someone, you know, get their ideas down on paper as a starting 
point. So that's yet another way it can kind of help assist in 
the patenting process.
    Mr. Salsberg. I would agree with that as well, with the one 
caveat that I do think it's important that you also have human 
supervision and human review of the outputs. We've seen report 
after report of situations where ChatGPT and the equivalent 
were used and the results ended up being inaccurate. So, I 
think right now it's a balance until we are more assured that 
the outputs are reporting accurate data, even for a small 
business, that they're actually getting the right answer that 
they're looking for.
    Senator Tillis. And that gets into the--whatever models 
you're using and whether or not they're secure, whether or not 
they're relying on a base of data that produces a safe or sound 
result.
    Mr. Salsberg. That's right. The quality of the data is 
very, very important.
    Senator Tillis. Yes. Well, I appreciate--I think this is 
going to be one of many hearings that we have on this and maybe 
work groups as we move forward if we can find any areas for 
legislative action. I thank you all for your testimony today. 
And I thank the audience for participating as well. Thank you, 
Mr. Chair.
    Chair Coons. Thank you, Senator Tillis. I understand 
Senator Blumenthal would like a second-round question. Then I 
have two or three, and then we will conclude. Senator 
Blumenthal.
    Senator Blumenthal. Yes. Thanks, Mr. Chairman. And I will 
be very brief. I would ask each of you, not here, but in 
writing afterward, to address two questions. One may seem 
pretty simple. Mr. Salsberg, in your prepared remarks, you talk 
about generative chemistry and how your company has developed 
new potential treatments for malaria, which is extremely 
promising. I would like from each of you--pick three, five of 
the most positive developments, inventions, but emphasizing the 
positive.
    Because around here, we tend to be talking a lot about the 
dangers and the harms because that's what attracts people's 
attention, the potential for extinction. Not my word, but as 
you know, a word used by many experts in the industry to raise 
the potential for harm.
    So, the second question I have for you, which doesn't 
really relate to your reason for being here today, is jobs, 
employment, impacts on our economy.
    For me, what keeps me up at night, one of the main reasons 
to stay awake when thinking about AI is the impact on our 
economy. I think we're on the verge of another industrial 
revolution, or the equivalent of the industrial revolution, 
when many, many jobs were destroyed in the course of raising 
the level of productivity for the jobs that were then created 
as a result of industrialization. And the people who tried to 
stop it, obviously the Luddites and so forth, failed.
    But there was a lot of human impact there. Maybe if you 
could address that issue and then maybe now, or in written 
testimony--in written submissions. On the issue of open source, 
Senator Hawley and I wrote to Meta earlier this week about an 
AI model they released to the public in February. I'm sure 
you're familiar with it, the LLaMA AI model. And open source 
software obviously can be an enormously important resource for 
innovation and invention, for science, standards, transparency.
    It can foster competition. At the same time, even in the 
near term, that kind of generative AI tool can be dangerously 
abused. And we raised this issue in our letter to Meta. Once 
the AI model and software are out there, there's no reeling it 
back. And Meta didn't seem to put a lot of thought into the 
risk before they released LLaMA. That's an issue, in my view. 
Senator Hawley and my Subcommittee will consider this an issue, 
open source, enormously promising, also potential dangers. I 
don't know whether any of you now, or in writing, would like to 
offer some observations.
    Ms. Elluru. Thank you, Senator. We are working on assessing 
the implications of open source models and trying to come up 
with some policy recommendations and would be happy to get back 
to your office on that.
    Senator Blumenthal. Thank you. Any others? Ms. Sheridan, 
did you have any thoughts?
    Ms. Sheridan. Similar to what Ms. Elluru shared, everyone's 
taking a look at this question right now and how it fits into 
responsible AI innovation. So we'll certainly follow up with 
more after the hearing.
    Senator Blumenthal. But I think all of you would agree that 
there's a need for thought and consideration here before these 
models are just thrown into the wild, so to speak. Correct? 
Thank you all. For the record----
    Chair Coons. Thank you. Thank you, Senator Blumenthal. I'm 
just going to ask three quick questions, then we'll conclude. 
Ms. Elluru, if I might, just on the question of patent 
eligibility, about Section 101 law, something we're going to be 
turning to in a future hearing, how does the patent eligibility 
status of core AI technologies and technologies applying AI 
under U.S. law compare to eligibility under competitors Europe, 
China? And is there a reason that the United States should 
adopt a different eligibility test?
    Is it necessary to harmonize eligibility laws globally as 
we consider the role AI and other emergency--other emerging 
technologies are playing in that race for critical technologies 
in which AI is a critical, facilitating technology that you 
described in your opening statement?
    Ms. Elluru. That's a great question, Senator. Thank you. I 
think, generally speaking, eligibility is not a hurdle in the 
EU. Their law for exceptions is written pretty narrowly, and 
it's interpreted narrowly. There's no dogma from courts 
deciding what is patentable and what is not patentable. I think 
China has a similar picture. They stopped--however, stopped 
filing--publishing patent filing data in 2020. So it's hard to 
get a picture of what's going on there.
    However, I would say based on data from the last few years, 
they were trending toward being more liberal in their 
allowances for patent eligibility. That is not the case in the 
United States. Since 2010, the patent eligibility uncertainty 
has only expanded, and that's leading to unpredictability. And 
so the patent incentives are----
    Chair Coons. Eligibility has only expanded?
    Ms. Elluru. Exceptions have only expanded.
    Chair Coons. Exceptions have only expanded. Thank you. Just 
wanted to make sure I understood.
    Ms. Elluru. And so that is leading to uncertainty and 
unpredictability and weakening the patent incentive. There is 
no incentive to invent in the first place. And if there are 
inventions, it's not shared with the public and is kept as a 
trade secret. Either scenario is bad for innovation. As far as 
harmonization, I think we need to be consistent with other 
jurisdictions. I think different eligibility barriers for 
companies is burdensome, which is not good for the innovation 
ecosystem.
    And the United States should not be an unwelcoming 
jurisdiction with respect to patent eligibility. Patent 
eligibility has implications on funding, job growth, the 
economy. And so I think we need to be consistent, especially 
with the partners and allies that we want to collaborate with.
    Chair Coons. Thank you. Well stated. Briefly, if I could, 
Professor Villasenor, Professor Abbott, is it something we 
should be concerned about, that either a private actor or a 
state actor is going to use AI to either write and file a very 
large number of patent applications in an attempt to lock up 
patenting opportunities, or will draft and publish a large 
number of prior art publications to prevent inventors from 
obtaining patents in the entire field?
    Is this likely? Is it something we can forestall? And what, 
if any, advice would you have for us on policy in this area, if 
you would, Professor?
    Professor Villasenor. So I do think it's a concern. I think 
when there are the incentives in place which with the continued 
advance of generative AI will be there, I think it's possible 
that either a private entity and/or a state actor might do 
exactly what you've asked in your question. The particular 
policy responses depend specifically on what the pattern is. 
It's very different if someone is publishing massive databases 
of online preemptive prior art as opposed to filing massive 
numbers of patent applications.
    For the patent applications, there's some friction. It 
costs money, for example, and patent--utility applications are 
examined. But I do think it's sort of a watch this space area 
where I do think we need to be agile with looking at how the 
patent system might be used or misused in that way and 
responding to it.
    Chair Coons. And Ms. Sheridan, would the idea of raising 
patent fees have any deterrent impact on this?
    Ms. Sheridan. It certainly would. And with the caveat, of 
course, that we're just talking about for large entities. But 
yes, raising fees would disincentivize that sort of behavior.
    Chair Coons. Professor Abbott.
    Professor Abbott. Some slightly different thoughts on that. 
I mean, if the concern is that AI is going to be generating so 
much invention that it's filing a lot of applications on 
legitimate ingenuity, I don't think that's a bad outcome. It 
means we have too much good stuff. If an actor was deliberately 
filing bogus patent applications to try and jam up the USPTO, I 
think that's something we would have more of a technical 
solution to. As to someone publishing a massive database----
    Chair Coons. What would that technical solution be, sir?
    Professor Abbott. Oh, well, I mean, if it was getting an 
overwhelming number of kind of auto-generated applications 
then, you know, the Patent Office is also leveraging its use of 
AI and might have AI trying to detect kind of the use of 
inappropriate filings that don't have legitimate claim and 
specification structures in it, for example. You know, so 
detecting essentially just fake applications. But you know, 
that might be a complex subject.
    To the extent, someone's just publishing a whole lot of 
data to try and keep people from getting patents, that is 
something I think patent law might have a solution to because 
prior art has to be anticipatory and enabling. And I would say 
if somewhere in a trillion, you know, document database, 
somewhere there's some disclosure related to an application 
that no one could usefully access or use, that would not be an 
enabling anticipatory disclosure. But that might also be 
something that if you are considering amending the Patent Act, 
that Congress could clarify.
    Chair Coons. Last question, Ms. Elluru, I think you raised, 
but I've also heard about data being just as important when it 
comes to AI as patents. And China allegedly is experimenting 
with a new form of IP rights in data because of its relevance 
to this race to be preeminent in AI. Should we be exploring 
similar rights around data sets that would be designed to 
incentivize innovation and promote disclosure and transparency, 
some of the core goals of the patent law?
    Ms. Elluru. That's a great question, Senator. Thank you 
very much. In short, yes, data is a critical input to the 
innovation ecosystem. We should be treating data across our 
industry, public sector, and academia as a strategic asset. So 
we need comprehensive data strategies to maximize the value of 
that data. That comprehensive data strategy should include 
several components, including data privacy, of course, but it 
should also explore intellectual property rights and data.
    Is it going to incentivize data-related inventions? Will it 
incentivize data-driven products and services that are great 
for the public? Is it going to help raise our economy--increase 
our economy? It's estimated that the market for data in a few 
years will be over a trillion dollars. Will intellectual 
property rights and data help increase that economy? And I 
think that is something we should explore.
    Chair Coons. We might be able to continue that discussion 
in our next hearing, which will be about the intersection of AI 
and copyright. I am so grateful to Senator Tillis, his staff, 
for making this possible. To all of you, for bearing with us, 
for your great testimony. To the Members of the Committee who 
came and asked questions, I will mention it's important, 
technically, that I say Members can submit questions for the 
record for you, the witnesses. They're due by 5 p.m. a week 
from today on June 14th. And with that, this hearing is 
adjourned.
    [Whereupon, at 4:35 p.m., the hearing was adjourned.]
    [Additional material submitted for the record follows.]

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              Additional Material Submitted for the Record

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