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Daniel Ilan

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Daniel Ilan’s practice focuses on intellectual property law.

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On July 26th, the National Institute of Standards and Technology (“NIST”) released its Artificial Intelligence Risk Management Framework: Generative Artificial Intelligence Profile (the “Profile”),[1] laying out more than 200 suggested actions to mitigate the risks of generative artificial intelligence (“Gen AI”).  This Profile is a companion to NIST’s Artificial Intelligence Risk Management Framework (the “Framework”), which was released in January of 2023.[2]  The Framework aims to act as a resource for entities dealing with all manner of Gen AI systems to help them manage risks and promote trustworthy and responsible development of AI.  The Profile is intended to be an implementation of the Framework, providing concrete steps to manage AI risks.  

As inventors, attorneys and patent examiners grapple with the impacts of AI on patents, the United States Patent and Trademark Office (the “USPTO”) has released guidance concerning the subject matter patent eligibility of inventions that relate to AI technology.[1]  The impetus for this guidance was President Biden’s Executive Order on Safe, Secure and Trustworthy Development and Use of Artificial Intelligence, which directed the USPTO to issue guidance to patent examiners and applicants regarding patent subject matter eligibility in order to address innovation in AI and other critical and emerging technologies.  

Yesterday, the Supreme Court denied certiorari in Hearst Newspapers, LLC v. Martinelli, declining to determine whether the “discovery rule” applies in Copyright Act infringement cases and under what circumstances.  As a result, most circuits will continue to apply the rule to determine when an infringement claim accrues for purposes of applying the Copyright Act’s three-year statute of limitations.

The following post was originally included as part of our recently published memorandum “Selected Issues for Boards of Directors in 2024”.

Artificial Intelligence (AI), and in particular, generative AI, will continue to be an issue in the year to come, as new laws and regulations, agency guidance, continuing and additional litigation on AI and new AI-related partnerships will prompt headlines and require companies to continually think about these issues.

The following post was originally included as part of our recently published memorandum “Selected Issues for Boards of Directors in 2024”.

Artificial intelligence (AI) was the biggest technology news of 2023. AI continues to revolutionize business in big and small ways, ranging from disrupting entire business models to making basic support functions more efficient. Observers have rightly focused on the plentiful value-creation opportunities this new technology affords. Less attention has been given to the risks AI creates for boards and management teams, which call for sophisticated governance, operational and risk perspectives. This article identifies key areas of risk and offers suggestions for mitigation on the road to realizing the enormous benefits AI promises.

In an opinion issued December 4, 2023, the U.S. Court of Appeals for the Federal Circuit[1] reversed a lower court’s denial of Intel Corporation’s (“Intel’s”) motion for leave to amend its answer to assert a new license defense in a patent infringement suit brought by VLSI Technology LLC (“VLSI”).  The decision paves the way for Intel to make the case that it received a license to VLSI’s patents when a company that Intel had an existing license with became affiliated with VLSI due to its acquisition by an investment management firm.

On October 30, 2023, the Biden Administration issued a landmark Executive Order on the Safe, Secure, and Trustworthy Development and Use of Artificial Intelligence (the “Order”), directing the establishment of new standards for artificial intelligence (“AI”) safety and security and laying the foundation to ensure the protection of Americans’ privacy and civil rights, support for American workers, promotion of responsible innovation, competition and collaboration, while advancing America’s role as a world leader with respect to AI.

On October 19, 2023, the U.S. Copyright Office announced in the Federal Register that it will consider a proposed exemption to the Digital Millennium Copyright Act’s (“DMCA”) anti-circumvention provisions which prohibit the circumvention of any technological measures used to prevent unauthorized access to copyrighted works.  The exemption would allow those researching bias in artificial intelligence (“AI”) to bypass any technological measures that limit the use of copyrighted generative AI models.

GitHub, acquired by Microsoft in 2018, is an online repository used by software developers for storing and sharing software projects.  In collaboration with OpenAI, GitHub released an artificial intelligence-based offering in 2021 called Copilot, which is powered by OpenAI’s generative AI model, Codex.  Together, these tools assist software developers by taking natural language prompts describing a desired functionality and suggesting blocks of code to achieve that functionality.  OpenAI states on its website that, Codex was trained on “billions of lines of source code from publicly available sources, including code in public GitHub repositories.” 

In a unanimous decision published on May 18, 2023, the U.S. Supreme Court invalidated two of Amgen’s patents for its cholesterol drug, Repatha, making it more difficult for patentees to obtain broadly worded patents.[1]  The case – Amgen Inc. v. Sanofi – involves a dispute between the two pharmaceutical companies over the “enablement” requirement of 35 U.S.C. Section 112,[2] specifically how much a patent must disclose in order to “enable” a skilled person to make and use the claimed invention without undue trial and error.  The Supreme Court held that Amgen failed to provide enough detail to recreate the full scope of its claimed invention, and that if a patent claims an entire class of processes, machines, manufactures or compositions of matter then the patent must include sufficient information that enables a person skilled in the art to make and use the entire class.