3510-16-P
DEPARTMENT OF COMMERCE
Patent and Trademark Office
[Docket No.: PTO-P-2024-0032]
Impact of the Proliferation of AI on Prior Art and PHOSITA: Notice of Public Listening
Session
AGENCY: United States Patent and Trademark Office, U.S. Department of Commerce.
ACTION: Notice of public listening session.
SUMMARY: The United States Patent and Trademark Office (USPTO) plays an important role
in incentivizing and protecting innovation, including innovation enabled by artificial intelligence
(AI), to ensure continued U.S. leadership in AI and other emerging technologies (ET). On April
30, 2024, the USPTO published a request for comments (RFC) in the Federal Register regarding
the impact of the proliferation of AI on prior art, the knowledge of a person having ordinary skill
in the art (PHOSITA), and determinations of patentability made in view of the foregoing. In
furtherance of its AI/ET Partnership, the USPTO hereby announces a public listening session on
July 25, 2024, titled “Listening Session on the Impact of the Proliferation of AI on Prior Art and
PHOSITA.” The purpose of the listening session is to obtain public input from stakeholders on
the impact of the proliferation of AI on prior art and PHOSITA, as set forth in the questions for
public comment of the RFC. The USPTO expects that the feedback received in this listening
session and the written responses received for the RFC will help the USPTO evaluate the need
for further guidance on these matters, aid in the development of any such guidance, and help
inform the USPTO’s work in the courts and in providing technical advice to Congress.
DATES: The Listening Session on the Impact of Proliferation of AI on Prior Art and PHOSITA
will be held on July 25, 2024, from 10:00 a.m. to 3:00 p.m. ET. Persons seeking to speak at the

listening session, either virtually or in person, must register by 8:00 p.m. ET on July 19, 2024, at
the website provided in the ADDRESSES section of this notice. Persons seeking to attend, either
virtually or in person, but not speak at the event, must register by 8:00 a.m. ET on July 25, 2024,
at the website provided in the ADDRESSES section of this notice.
ADDRESSES: Register to speak or attend the listening session at
www.uspto.gov/initiatives/artificial-intelligence/ai-and-emerging-technology-partnershipengagement-and-events. The listening session will take place virtually and in person at the
USPTO Headquarters, National Inventors Hall of Fame Museum, 600 Dulany Street, Alexandria,
VA 22314. Registration is required to speak for both virtual and in-person attendance. Seating is
limited for in-person attendance. Registrants must indicate whether they are registering as a
listen-only attendee or as a speaker participant.
The public meeting will be physically accessible to people with disabilities. Individuals requiring
accommodation, such as sign language interpretation or other ancillary aids, should
communicate their needs to an individual listed under the FOR FURTHER INFORMATION
CONTACT section of this notice at least seven business days prior to the public meeting.
FOR FURTHER INFORMATION CONTACT: Srilakshmi Kumar, Senior Advisor, Office of
the Under Secretary, 571-272-7769, or Aleksandr Kerzhner, Supervisory Patent Examiner, 571270-1760. You can also send inquiries to AIPartnership@uspto.gov.
SUPPLEMENTARY INFORMATION:
I. BACKGROUND
To continue its support for the National AI Initiative Act of 2020, which became law on January
1, 2021, the USPTO announced in June 2022 the formation of the AI/ET Partnership, which
provides an opportunity to bring stakeholders together through a series of engagements to share
ideas, feedback, experiences, and insights on the intersection of intellectual property and AI/ET.

To build on the AI/ET Partnership efforts and the USPTO’s recent AI-related efforts associated
with Executive Order 14110,1 on April 30, 2024, the USPTO issued an RFC titled “Request for
Comments on the Impact of Proliferation of AI on Prior Art, the Knowledge of a Person Having
Ordinary Skill in the Art, and Determinations of Patentability Made in View of the Foregoing”
(89 FR 34217, April 30, 2024) (available at
www.federalregister.gov/documents/2024/04/30/2024-08969/request-for-comments-regardingthe-impact-of-the-proliferation-of-artificial-intelligence-on-prior -). The RFC provides an
overview of prior art considerations and discusses some concerns relevant to AI-generated prior
art, discusses the current PHOSITA assessment as it is applied by the USPTO and the courts, and
poses 15 questions for public comment on the impact of AI on prior art and the PHOSITA
assessment.
II. PUBLIC LISTENING SESSION
The USPTO will hold a public listening session virtually and in person at the USPTO
Headquarters in Alexandria, Virginia, on July 25, 2024.
Requests to participate as a speaker must include:
1. The name of the person desiring to participate;
2. The organization(s) that person represents, if any;
3. Contact information (zip code, telephone number, and email address);
4. Information on the specific topic or question(s) from the RFC of interest to the speaker (or
their organization); and
5. A summary of comments to be articulated during the listening session (discussed further
below).

Executive Order on the Safe, Secure, and Trustworthy Development and Use of Artificial Intelligence, Executive
Order 14110, 88 FR 75191 (November 1, 2023).
Speaking slots are limited; preference will be given to speakers based on the specific topic or
question(s) provided in the request to participate. Selected speakers may be grouped by topic.
Topics and speakers will be announced a few days prior to the event and listening session.
Speakers may attend virtually or in person and are required to submit their remarks for the
listening session in advance through the Federal eRulemaking Portal at www.regulations.gov.
Each speaker will be informed of their assigned time slot in advance. Time slots will be at least
three minutes, but may be longer, depending on the number of speakers registered. USPTO
personnel may reserve time to ask questions of particular speakers after the delivery of a
speaker’s remarks.
III. QUESTIONS FROM THE RFC ON THE IMPACT OF AI ON PRIOR ART AND
PHOSITA FOR DISCUSSION AT THE LISTENING SESSION
The purpose of the listening session is to obtain public input from a broad group of stakeholders
regarding the impact of the proliferation of AI on prior art and PHOSITA, as set forth in the
questions for public comment of the RFC.
We encourage interested speakers to address the questions posed in the RFC and to submit
research and data, if any, that inform their comments on these questions. Official written
comments to the questions raised in the RFC should be submitted as outlined in the RFC. For
convenience, a copy of the questions from the RFC is provided below in their entirety.
A. The Impact of AI on Prior Art
1. In what manner, if any, does 35 U.S.C. 102 presume or require that a prior art disclosure be
authored and/or published by humans? In what manner, if any, does non-human authorship of a
disclosure affect its availability as prior art under 35 U.S.C. 102?
2. What types of AI-generated disclosures, if any, would be pertinent to patentability
determinations made by the USPTO? How are such disclosures currently being made available

to the public? In what other ways, if any, should such disclosures be made available to the
public?
3. If a party submits to the Office a printed publication or other evidence that the party knows
was AI-generated, should that party notify the USPTO of this fact, and if so, how? What duty, if
any, should the party have to determine whether a disclosure was AI-generated?
4. Should an AI-generated disclosure be treated differently than a non-AI-generated disclosure
for prior art purposes? For example:
a. Should the treatment of an AI-generated disclosure as prior art depend on the extent of human
contribution to the AI-generated disclosure?
b. How should the fact that an AI-generated disclosure could include incorrect information (e.g.,
hallucinations) affect its consideration as a prior art disclosure?
c. How does the fact that a disclosure is AI-generated impact other prior art considerations, such
as operability, enablement, and public accessibility?
5. At what point, if ever, could the volume of AI-generated prior art be sufficient to create an
undue barrier to the patentability of inventions? At what point, if ever, could the volume of AIgenerated prior art be sufficient to detract from the public accessibility of prior art (i.e., if a
PHOSITA exercising reasonable diligence may not be able to locate relevant disclosures)?
B. The Impact of AI on a PHOSITA
6. Does the term “person” in the PHOSITA assessment presume or require that the “person” is a
natural person, i.e., a human? How, if at all, does the availability of AI as a tool affect the level
of skill of a PHOSITA as AI becomes more prevalent? For example, how does the availability of
AI affect the analysis of the PHOSITA factors, such as the rapidity with which innovations are
made and the sophistication of the technology?

7. How, if at all, should the USPTO determine which AI tools are in common use and whether
these tools are presumed to be known and used by a PHOSITA in a particular art?
8. How, if at all, does the availability to a PHOSITA of AI as a tool impact:
a. Whether something is well-known or common knowledge in the art?
b. How a PHOSITA would understand the meaning of claim terms?
9. In view of the availability to a PHOSITA of AI as a tool, how, if at all, is an obviousness
determination affected, including when:
a. Determining whether art is analogous to the claimed invention, given AI's ability to search
across art fields? Does the “analogous” art standard still make sense in view of AI's capabilities?
b. Determining whether there is a rationale to modify the prior art, including the example
rationales suggested by KSR (MPEP 2143, subsection I) (e.g., “obvious to try”) or the scientific
principle or legal precedent rationales (MPEP 2144)?
c. Determining whether the modification yields predictable results with a reasonable expectation
of success (e.g., how to evaluate the predictability of results in view of the stochasticity (or lack
of predictability) of an AI system)?
d. Evaluating objective indicia of obviousness or nonobviousness (e.g., commercial success, long
felt but unsolved needs, failure of others, simultaneous invention, unexpected results, copying,
etc.)?
10. How, if at all, does the recency of the information used to train an AI model or that ingested
by an AI model impact the PHOSITA assessment when that assessment may focus on an earlier
point in time (e.g., the effective filing date of the claimed invention for an application examined
under the First-Inventor-to-File provisions of the America Invents Act)?

11. How, if at all, does the availability to a PHOSITA of AI as a tool impact the enablement
determination under 35 U.S.C. 112(a)? Specifically, how does it impact the consideration of the
In re Wands factors (MPEP 2164.01(a)) in ascertaining whether the experimentation required to
enable the full scope of the claimed invention is reasonable or undue?
C. The Implications of AI That Could Require Updated Examination Guidance and/or
Legislative Change
12. What guidance from the USPTO on the impact of AI on prior art and on the knowledge of a
PHOSITA, in connection with patentability determinations made by the Office, would be
helpful?
13. In addition to the considerations discussed above, in what other ways, if any, does the
proliferation of AI impact patentability determinations made by the Office (e.g., under 35 U.S.C.
101, 102, 103, 112, etc.)?
14. Are there any laws or practices in other countries that effectively address any of the questions
above? If so, please identify them and explain how they can be adapted to fit within the
framework of U.S. patent law.
15. Should title 35 of the U.S. Code be amended to account for any of the considerations set
forth in this notice, and if so, what specific amendments do you propose, and why?

Katherine K. Vidal,
Under Secretary of Commerce for Intellectual Property and Director of the United States Patent
and Trademark Office.
[FR Doc. 2024-14691 Filed: 7/3/2024 8:45 am; Publication Date: 7/5/2024]