Brainstorming Groups - Overview
(1) Artificial Intelligence and Patent Litigation Issues
This brainstorming group will make a recommendation about whether WG10 should prepare a commentary on the widespread adoption of generative artificial intelligence by the business world and its far-reaching implications in the patent litigation space. A critical component of every patent case concerns the definition of the hypothetical person of ordinary skill in the art (“POSITA”). This definition has implications for claim construction and infringement purposes, and invalidity analyses under 35 U.S.C. §§ 102, 103, and 112. There is an open question whether the POSITA definition should assume access to generative AI platforms. Would such access greatly expand the POSITA’s knowledge? And if access to generative AI platforms is assumed, what are the contours of those platform(s)? If a POSITA is assumed to have access to AI, what are the implications for the motivation to combine analysis and analogous art issues under § 103? What are the implications for considering whether a patent contains an enabling disclosure under § 112?
Additionally, generative AI can now be used to propose numerous solutions to stated problems. Those solutions can be posted to a website or other database. Should these AI-generated disclosures qualify as “prior art” within the meaning of 35 USC § 102? Do they meet the statutory definition and court-developed applications of that definition? If, as many courts have determined, only a person can qualify as an inventor for purposes of obtaining a patent, then should a disclosure qualify as “prior art” only if it was created by a person?
The purposes of this brainstorming group are to recommend whether or not to proceed to the drafting team stage with support in either case for its position and if recommending to proceed, to propose an outline/project charter that may be used as a starting point for a subsequent drafting team to develop a Commentary addressing these important issues. All interested members of this brainstorming group and others will be invited to submit an application to join the subsequent drafting team. The WG10 Steering Committee will select the drafting team members from the applications submitted.
(2) Unified Patent Court
This brainstorming group will explore whether an updated version of the Sedona Working Group 10 publication “Framework for Analysis for Resolution of Disputes before European Unified Patent Court” (“Framework”) should be prepared. This Brainstorming Group will develop a project charter to be submitted to the WG10 Steering Committee making a recommendation about if and how to update the Framework and how to proceed beyond the project charter. If the BSG’s recommendation is to proceed and is approved, all working group members (including those on the brainstorming group) will be invited to apply to participate on the drafting team that would develop a subsequent version of the Framework based on the approved project charter.
Among other topics that may be pursued, the brainstorming group will consider two major developments since the Framework was first issued:
(i) The emergence of UPC case-law
The Unified Patent Court has now begun issuing decisions that provide early insight into how it may handle procedural and substantive patent issues. These rulings may have significant implications for patent strategy and litigation behavior. Should the Framework be updated to reflect this evolving jurisprudence? Are there themes or patterns in the case-law that deserve analysis, guidance, or commentary? Do existing best practices hold up in light of these decisions, or are revisions needed to remain relevant and practical?
(ii) Unresolved major issues
Despite the Court’s early rulings, several important issues remain unclear or untested. These include questions around procedural harmonization across local and regional divisions, and treatment of the prosecution history and counterclaims for FRAND-rate determinations. Should the Framework address these open questions, perhaps by outlining different scenarios or strategies? Would commentary help clarify where legal uncertainties might impact the resolution of disputes?
The purpose of this brainstorming group is to assess whether these developments warrant a substantial update to the existing Framework, and if so, to propose an outline that may be used to draft a revised version via a subsequently constructed drafting team. If you are interested in participating in this brainstorming effort, please apply by Tuesday, June 10, 2025 via the link below.
Brainstorming Groups - Member Expectations
Brainstorming group members will be expected to actively participate in regularly scheduled phone conferences to brainstorm on work product ideas. Members will also be expected to participate in the drafting of a detailed outline that allows a subsequent drafting team to prepare work product consistent with standards of The Sedona Conference.
Brainstorming Group - Selection
To apply for these brainstorming groups, you must be a member of WG10. If you are interested in applying for these brainstorming groups, but are not yet a member of WG10, please become a member by signing up for a Working Group Series (WGS) membership. Once a WGS member, one is eligible to take part in the activities of all Working Groups, including WG10. If you have any questions about how to sign up for a membership or encounter any difficulties while doing so, please contact our office at [email protected] or +1(602) 258-4910.
To be considered for the brainstorming group(s), please complete the questionnaire found here and submit it no later than COB EDT on Tuesday, June 10, 2025.