The Sedona Conference on AI and the Law, Part 2: AI and IP Law

Date: 
Thursday, June 20, 2024 - 8:30am to Friday, June 21, 2024 - 1:00pm

Image provided by DALL-E

Location:
Hyatt Regency Reston
1800 Presidents Street
Reston, VA 02190

2023 will go down in legal history as “The Year of Artificial Intelligence (AI).” Although AI – in many forms – has been with us for decades, it took the legal profession by storm with the introduction of Generative AI, accessible to the public. The AI revolution is continuing well into 2024, with AI-enabled products and services being introduced almost daily.

In April of 2024, The Sedona Conference organized its first "AI and the Law" conference. That initial conference, Part 1, was devoted to AI in civil litigation. It sold out, with a standing-room-only audience. This second conference, Part 2, will concentrate on AI in Intellectual Property law and practice.

As with Part 1, Part 2 will start with a solid practical foundation. The expert faculty will:

  • Explain the relevant technologies and define common terms,
  • Illustrate how AI is being used in legal practice today,
  • Explore issues of bias, validity, reliability, and evidential value, and
  • Examine professional responsibility issues and recent court and bar pronouncements on using AI.

Part 2 will then focus on substantive Intellectual Property issues, with dialogue leaders tackling:

  • AI in the invention and patent prosecution processes,
  • AI-related issues in patent infringement and validity actions,
  • Trade secret challenges presented by AI, and
  • AI's challenges to copyright law, with a review of recent case law.

The conference will conclude witha panel of regulators, judges, and a key federal legislator discussing the future of AI regulation and governance.

The conference will be held at the Hyatt Regency in Reston, Virginia, a short distance from Dulles International Airport and accessible by public transit to the Washington, D.C. metropolitan area. Attendance at the conferences will be limited to assure that all attendees will be able to actively participate in The Sedona Conference's spirit of dialogue.

Hotel Reservation Information

We have obtained a very favorable group room rate of $249 per night (plus taxes) for a limited block of rooms on the evenings of June 19-20, 2024. The group rate will be available for three days preceding and three days following the dates of the room block, subject to standard guestroom availability. The hotel is holding the limited block of rooms until May 28, 2024, after which any unsold rooms in the block will be released for sale to the public. After that date, rooms will be subject to availability. Reservation information will be provided in your conference registration confirmation email.

CLE

The Sedona Conference will seek CLE accreditation for this meeting in selected jurisdictions, as dictated by attendance. Sessions on professional responsibility, technical competence, and elimination of bias may also be accredited in selected jurisdictions.

Sponsorship

Law firms, legal service providers, technology companies, and other organizations interested in sponsorship opportunities for either or both conferences can get more information here.

Co-Chairs

Wood Phillips

Chandler, AZ, USA

Alexandria, VA, USA

Cisco Systems, Inc.

San Jose, CA, USA

Dialogue Leaders

Relativity

Arlington, VA, USA

Cisco Systems, Inc.

Milton, GA, USA

Kilpatrick Townsend

Atlanta, GA USA

Baker McKenzie

Palo Alto, CA, USA

Sterne, Kessler, Goldstein & Fox PLLC

Washington, DC, USA

USPTO

Alexandria, VA

Bolch Judicial Institute at Duke Law School

Durham, NC, USA

University of Waterloo

Waterloo, ON, Canada

Clark Hill

Chicago, IL, USA

United States Congress

Washington, DC, USA

Banner Witcoff

Washington, DC, USA

Sterne, Kessler, Goldstein & Fox PLLC

Washington, DC USA

Northwestern Pritzker School of Law & McCormick School of Engineering

Chicago, IL USA

Crowe

Spring, TX, USA

Pelletier Law, LLC

Chicago, IL, USA

Tensegrity Law Group LLP

San Francisco, CA, USA

Shaw Keller LLP

Wilmington, DE, USA

WilmerHale

Palo Alto, CA, USA

Withers & Rogers, LLP

Warwick, United Kingdom

DLA Piper LLP (US)

Dallas, TX, USA

AI and the Law, Part 2 Agenda

Time  Session  Panelists
  Wednesday, June 19, 2024  
6:00pm — 8:00pm Evening Welcome reception  
  Thursday, June 20, 2024  
7:30am — 8:30am Buffet Breakfast & Sign-in  
8:30am — 8:45am Welcome and Announcements  
8:45am — 9:45am Session 1: What Artificial Intelligence (AI) is and how it is being used  
  We are already using AI in the practice of law and have been for several years. We use online research tools that rank the relevance of court decisions to issues we have identified. The USPTO has reportedly deployed an AI-based auto-classification system for patent applications and AI-powered prior art search tools for patent examinations. In recent months, Generative AI (GenAI) has propelled us into a world in which we can converse with an app to perform legal research, select relevant statutory and case law, and draft work product. In this “level-setting” introductory session for Artificial Intelligence novices and sophisticated Intellectual Property practitioners alike, a panel of experts on AI and the law will explain the science and mathematics behind AI, distinguish the various flavors of AI, define terms that will be used frequently during this conference, and identify the relevant technical issues to be explored in depth in the subsequent sessions.  
9:45am — 10:45am Session 2: How AI is changing the legal profession in IP and beyond  
  Lawyers are facing novel issues every day as AI innovation explodes. New uses of AI impact not only the way we practice law but the jobs that we do. AI tools provide the opportunity for counsel to enhance their efficiency and effectiveness in multiple ways – whether by employing machine learning algorithms for the identification and categorization of data or using generative AI to automate baseline tasks, thereby permitting more time for deep (human) thinking. For patent litigators, the benefits of AI may include improved legal research, enhanced predictive analytics on legal strategies, and better litigation management. For patent lawyers, AI may support more robust prior art searching, facilitate the construction of claim charts, and assist in investigating design-around alternatives for non-infringement positions. In-house lawyers are finding themselves at the table in development and deal conversations far earlier than ever before as legal advice becomes increasingly strategic. Ad hoc working groups across multiple legal disciplines are coming together to collaborate and enable AI tools and features while mitigating and managing risk for what promises to be a long period of uncertainty. Our panel of litigators, in-house counsel, and IP experts will explore both the benefits afforded by AI as well as the novel issues that keep them awake at night.  
10:45am — 11:00am Morning Break  
11:00am — 12:00pm Session 3: Facing AI's validity, reliability, bias, and evidential challenges  
  AI, like any technical tool or method, requires evaluation to determine whether it works properly and is appropriate for use in particular settings. However, some AI applications have come under scrutiny for allegedly incorporating biases in their data and algorithms, producing undesirable, inaccurate, or inconsistent results. The performance of AI applications can be observed and measured, and if addressed properly, these applications can be improved or better managed. The dialogue leaders will discuss the performance of AI tools used for various legal functions, how we access their efficacy, and the challenges that AI presents to admissibility under Rule 104 of the Federal Rules of Evidence, undue prejudice under Rule 403, and authentication under Rule 901.  
12:00pm  — 1:00pm Session 4: Professional responsibility issues raised by the use of AI  
  The use of AI by law firms, corporate legal departments, law enforcement, regulatory agencies, and the courts raises a host of ethical concerns, some of which are squarely governed by the Model Rules of Professional Responsibility. Rule 1.1 requires that lawyers understand the technologies they are using or involved in their cases, Rule 1.6 places a duty of confidentiality when using client data to train or query an AI application, Rules 3.3 and 3.4 require candor to the court and fairness to opposing parties when using AI to develop argument or evidence, Rules 5.1 through 5.3 require supervision of partners, associates, and assistants who may be using AI, and Rule 5.5 prohibits the unauthorized practice of law, which may be facilitated by chatbots. The dialogue leaders will analyze these rules and others to make recommendations for using AI ethically in the practice of law, including the patent application, examination, and challenge or enforcement processes.  
1:00pm — 2:15pm Lunch (provided)  
2:15pm — 3:15pm Session 5: Challenges to the patent law system presented by AI  
  The advent of AI ignited a national debate regarding whether current patent laws and procedures adequately match policy goals. In this session, the dialogue leaders will discuss issues surrounding AI-assisted patent applications, including patent eligibility, inventorship and what constitutes “significant human contribution,” patent ownership, AI-fabricated prior art, and USPTO disclosure requirements. Additional questions include what R&D policies should companies consider to protect their potential patent rights or mitigate infringement liability. Could contractual agreements with AI providers or employee use of AI to innovate create the risk of losing patent rights?  
3:15pm — 3:30pm Afternoon Break  
3:30pm — 4:30pm Session 6: Patent litigation issues arising from GenAI  
  Artificial intelligence is already in active use in the workplace. With that comes several legal issues. When utilized for hiring, firing, performance review, or promotions, there is the possibility that AI may introduce or perpetuate race, gender, age, or disability biases. The data collection and retention needed to train AI applications may implicate employee privacy and data security concerns. This panel will identify the human resource issues, discuss some of the leading court and regulatory agency decisions, and invite dialogue on the road ahead.  
4:30pm — 5:30pm Session 7: Trade Secret challenges and opportunities presented by AI  
  Under both federal and state trade secret laws, trade secret owners must take reasonable measures to keep their valuable information assets secret. The use of AI by employees presents a risk that trade secrets may be exposed, but that risk should be balanced against the advantages of using AI. The dialogue leaders will discuss ways to manage trade secret risk to effectively capitalize on the advantages of using AI. Conversely, trade secrets may be a method of protecting AI innovation. Unlike the time and scope limitations on the protection of software and algorithms under US patent law, trade secrets may better protect AI-related software, training data, input parameters, and confidential, internally deployed output. The dialogue leaders will discuss whether trade secret law, unlike patent and copyright law, can protect AI systems and AI-generated output.  
5:30pm — 7:30pm Reception (Guests Invited)  
  Friday, June 21, 2024  
7:30am — 8:30am Buffet Breakfast & Sign-In  
8:30am — 9:45am Session 8: Copyright policy and law in the age of AI
  Generative AI has challenged our fundamental notions of copyright, raising myriad questions. Is there an “author” or “artist” of a GenAI-created work? How much human involvement in the process is necessary for the work to obtain copyright protection, or should we revisit the notion that human involvement is required? Should the copyright owners of the data used to train the AI system have ownership rights in the output? Should the developers of AI systems be required to compensate owners of the input data, or does the fair use doctrine apply? Should the fair use doctrine adapt to accommodate the unique capabilities of AI in research, education, and creative expression? Can AI systems create derivative works that infringe on existing copyrights? How do we determine the level of originality in AI-generated output, especially when it mimics existing styles or incorporates copyrighted elements? How do we draw the line between “authorship” and “attribution”? Should related legal doctrines, such as moral rights, attribution, and rights of publicity, be considered? The dialogue leaders will explore these questions and more, inviting your input on the directions copyright law and policy might take to resolve them.  
9:45am — 10:00am Morning Break  
10:00am — 11:15am Session 9: Copyright litigation in the age of Artificial Intelligence
  Courts are grappling with the challenges GenAI presents to existing copyright law. Among the issues being litigated are establishing the “substantially similar” requirement for infringement by GenAI output trained on copyrighted text, images, and software code; establishing indirect copyright infringement claims against generative AI providers; the application of the Digital Millenium Copyright Act’s prohibition on circumvention of technical controls; and the efficacy of watermarking or other forms of copyright marking. In this session, the dialogue leaders will discuss recent decisions and pending high-profile cases and assess the statutory interpretations and legal theories being employed.  
11:15am — 12:30pm Session 10: Legislative, judicial, administrative, White House, and international responses to challenges of AI, including deep fakes
  The explosion of public interest in – and concern about – Artificial Intelligence has spawned a dizzying array of proposals for regulation to balance the needs for privacy, consumer protection, law enforcement, and open markets with the promises of technological innovation. States have already implemented various regulations of AI, and the federal government is considering more. At the same time, federal courts and administrative agencies are wrestling with the application of current laws, rules, and regulations to novel technologies. The bipartisan proposed NO FAKES Act of 2023 would protect the voice and visual likeness of all individuals from unauthorized recreations from generative artificial intelligence and proposed amendments to the Federal Rules of Evidence would address the authentication or challenge of evidence generated or modified by AI. This panel will address many of the issues raised in the prior sessions and allow regulators, legislators, and judges to candidly access where we are going with the governance of AI locally, nationally, and globally  
12:30pm — 12:45pm Closing Remarks
12:45pm Adjournment and Grab & Go Lunch (provided)  

*Panel Moderator

Date: 
Thursday, June 20, 2024 - 8:30am to Friday, June 21, 2024 - 12:45pm