Artificial Intelligence and the Self-Represented Inventor

Lack of access to competent legal representation is pervasive throughout the justice system. Unfortunately, the patent system is no exception. Self-represented inventors are far less likely to obtain patents than those with legal representation. Increasing access to artificial intelligence (AI) can mitigate some of the disadvantages of self-representation, but the use of AI will also raise new challenges. To the extent that AI systems can help self-represented inventors, they can begin to address one of the underlying causes of the patent gap—lack of access to high quality legal services. Women and people of color hold fewer patents, in part, because of differential access to counsel. While AI is no substitute for legal representation, it can be incorporated into the patenting process in limited circumstances to help self-represented inventors.This Article describes the challenges self-represented inventors face in applying for patents and the implications of these difficulties for innovation as well as equitable access to the patent system. It sets forth the circumstances in which the use of AI would be most useful for self-represented inventors, when the risks outweigh the benefits, and when it may raise barriers to entry for self-represented inventors. This Article is also the first to identify how the use of AI by the Patent Office to classify and assign applications for examination may unintentionally discriminate against inventors. It concludes with recommendations for the Patent Office to improve upon its efforts to support self-represented inventors and cautions against relying on AI and other technology to satisfy the need for legal representation

AlphaFold 3, AI, Antibody Patents, the Future of Broad Pharmaceutical Patent Claims, and Drug Development

Artificial intelligence (AI) will have an enormous impact both on pharmaceutical development and patent protection, particularly for antibody therapeutics. In Amgen Inc. v. Sanofi, the U.S. Supreme Court limited the scope of Amgen’s therapeutic antibody patent to only those antibodies that were specifically described in Amgen’s patent application and that had been shown to bind to a particular region of the target antigen, blocking the activity of the antigen that caused disease. The reason for this limitation was the patent requirement of enablement: that potentially millions of antibodies could be generated to the target antigen but that not all would bind in a way that produced the therapeutic effect. The Court concluded that Amgen’s patent had not enabled other scientists to produce antibodies with the desired activity without “undue” experimentation, concluding a decades-long shift in their caselaw limiting the permissible scope of monoclonal antibody patents. Our primary conclusion is that artificial intelligence has the power to overcome the problem of enablement that currently limits the scope of antibody patents. We also conclude that the rapid pace of improvement in AI is likely to bring about significant changes in pharmaceutical patents generally, with the potential to transform the future of drug development and the pharmaceutical industry

The First Thing We Do is Kill All the Lawsuits

As insurance premiums spike across the Nation, insurers are (yet again) pointing the finger at lawyers and lawsuits as an explanation. This Article offers new and important data on whether, in fact, currently there is a crisis of litigation in the United States. Neither the assertion of a litigation crisis, nor legislatures adopting systemic reform in response to the perception of one, is anything new. For almost two hundred years, there have been recurring cycles of complaints about lawyers, lawsuits, and their impact on society. Yet each time independent researchers have looked at the assertion, they have found the data wanting. Nonetheless, the current call from insurance companies and their lobbyists is that “social inflation” is somehow worse, different, and again fast driving the unaffordability and unavailability of insurance. Taking advantage of deeper data than ever before available, this Article jumps into a task largely not undertaken by academics for at least a decade, again seeking empirical evidence of a litigation crisis. This Article asks: considering the lack of evidence before, what’s new? In addressing this question, this Article looks at 25+ year trends to determine whether more lawsuits are being filed, defendants are losing with greater frequency, mean and median awards are growing, more frivolous cases are being filed (or winning), and if the cost of litigation is having a measurable impact on the cost of insurance. In other words, is there a litigation crisis

(Non)police Brutality

Local governments increasingly rely on unarmed, nonpolice experts to provide public safety services. In response to demands to reduce police violence, many municipalities have empowered paramedics, mental health counselors, social workers, and homeless outreach personnel, to triage health and safety issues without police involvement. Pilot programs reallocating police funds to these alternate responders appear to reduce arrest rates and rates of police violence. But they have not eliminated acts of violence committed by these nonpolice actors themselves. Shocking stories of paramedics chemically sedating motionless patients to death, social workers assaulting clients, and homelessness response units brutally dispersing unhoused persons after destroying their homes highlight the continued risks to vulnerable individuals interfacing with public safety personnel. This Article provides the first sustained treatment of what I call “nonpolice brutality,” evaluates why most violent nonpolice actors operate free from constitutional restraints, and charts the troubling implications for marginalized communities depending on these responders. While the Fourth Amendment’s excessive force jurisprudence governs most police violence as a potential “unreasonable seizure,” courts are reluctant to apply the same excessive force rules to nonpolice actors outside criminal investigative contexts. Moreover, the Supreme Court’s narrow definition of “seizure” excludes brutal acts designed to disperse rather than detain individuals, a particularly relevant loophole in the homeless rights context. And residual protections from government violence under the Due Process Clause virtually never apply in nonpolice public safety cases, because any such violence fails to “shock the contemporary conscience” of judges removed from the insecurity of daily life on the margins of society’s fragile social welfare system. The Article concludes with recommendations for jurisprudential reform grounded in the text, purpose, and design of the Fourth and Fourteenth Amendments

Climate Proof Electricity

The devastating impacts of climate change make themselves known in the form of fires, floods, droughts, storms, extreme heat and cold, and worsening socioeconomic conditions around the globe. At the same time, the U.S. electricity system has never been more vulnerable to severe weather. Even as we embark on a national project to decarbonize the electricity system by 2035, the U.S. leads the developed world in power outages. These outages are in large part due to aging infrastructure, improperly weatherized systems, vegetation crashing down on transmission and distribution lines and—perhaps most devastating of all—wildfires caused by fallen power lines in places where drought and poor land management have made the surrounding area a veritable tinderbox. But even though the country is experiencing more frequent and intense bouts of extreme weather due to climate change, not enough is being done to make the electricity system more reliable or resilient. This Article argues that climate change adaptation should be considered a separate category from both grid reliability and resilience. This is true for three reasons: first, regulatory approaches to reliability and resilience reflect old ideas and maintain utility economic interests; second, those same utility interests are partly responsible for the brittle state of the grid; and third, most existing proposals for climate adaptation will result in skyrocketing consumer energy bills, without any guarantee of effectiveness. By reframing climate adaptation as a separate category of risk and regulation, lawmakers can approach regional planning for disasters in creative ways and remove the cost of adaptation measures from regulated rates, recognizing that electricity systems are critical infrastructure. In making this argument, this Article engages with the current state of utility regulation to illustrate that there is no clear path to safe, reliable electricity in the climate change era without fundamentally changing how utilities and regulators engage with these issues