This week on IPWatchdog Unleashed, I spoke with Robert Plotkin, a patent attorney, computer scientist, and longtime software and AI practitioner. In what turned into a wide ranging conversation about artificial intelligence, Plotkin, who is the author of The Genie in the Machine and AI Armor: Securing the Future of Your AI Company with Strategic Intellectual Property, discusses the legal and strategic challenges confronting AI innovation. We discuss why companies should be cautious about treating AI patent counts as evidence of innovation leadership and why the most valuable AI patent portfolios are built around technology that matters to the business for a specific, articulable reason.

On Friday, the U.S. Court of Appeals for the Fifth Circuit issued a ruling answering multiple questions of first impression regarding copyright claims involving building plans, including the scope of protection under the Architectural Works Copyright Protection Act (AWCPA) for constructed buildings and floorplan renderings. Vacating the Western District of Texas’ dismissal of Kipp Flores Architects’ (KFA) copyright infringement claims, the Fifth Circuit affirmed the lower court’s dismissal of KFA’s claims under the Digital Millennium Copyright Act (DMCA) over alleged failures to include copyright management information (CMI) on new floorplans developed from KFA’s technical drawings.

For many small businesses, uncertainty in patent prosecution can mean the difference between a strong issued patent and either abandonment or suboptimal coverage. One source of uncertainty in today’s system is final office action practice. Recent data suggests that roughly 42% of patent applications receive a final office action, meaning they are not allowed initially or after a response to a non-final office action. While receiving a final office action does not close the door on a patent application, it does give examiners greater discretion in directing its path. This discretion is unnecessary and can be eliminated by tying U.S. Patent and Trademark Office (USPTO) fees more closely to the actual content and complexity of each office action response.