The article aims to clarify that the U.S. Patent and Trademark Office's AI guidance does not conflict with previous guidance, specifically the 2019 Revised Patent Subject Matter Eligibility Guidance. Despite concerns among practitioners about discrepancies between guidance examples, the author argues that practitioners should avoid framing arguments that suggest a conflict exists. The USPTO has indicated that its AI guidance is intended to be consistent with prior guidelines, and all prior inconsistencies should favor the new framework, reinforcing the importance of clear legal arguments for patent applications.
If there is a conflict between these sets of examples, then they can't coexist in the same universe at the same time. In that case, it will be the new one that applies.
The AI Guidance even states, 'This guidance is meant to be consistent with existing USPTO guidance.' If any earlier guidance is inconsistent, personnel are to follow the new guidance.
Be careful not to frame your arguments as if there could be a conflict between the two guidance documents... Don't give the impression that you're asking for one over another.
Practitioners have noted that Example 39 of the 2019 PEG is seemingly less effective in overcoming Section 101 rejections following the issuance of the AI Guidance.
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