Devilish Details: The Infernal Technology Case and Artificial Intelligence Patents

Data manipulation is core to AI, which is now being applied to a vast array of fields, from autonomous driving and driver assistance systems to identifying new drug compositions that will cure rare diseases. Across nearly every tech sector, AI is driving innovation. When it comes to patents, AI’s versatility has not only unique promise, but also key pitfalls. Sophisticated companies need to understand both.

Patents covering AI-implemented inventions often rely on terms like “data.” to describe the underlying invention. This makes it critical that inventors and practitioners carefully consider how “data” is described in patent applications, both in the specification and the claims. One recent Federal Circuit case demonstrates that even using a simple term like “data” has hazards to look out for.

In Infernal Technology v. Activision Blizzard, the Federal Circuit affirmed a district court’s opinion that Activision did not infringe a patent covering the display of light and shadow in computer graphics. The parties agreed that the term “observer data” meant “data representing at least the color of objects …,” meaning that “observer data” could include other data as well.  It must include “the color of objects” but could include other “observed” data types.  

At first glance, this meaning would favor Infernal, because it is broad. But problems arose because the term “observer data” appeared in the claim three times, generalized as follows:

• Step [1] “providing observer data …”
• Step [2] “... comparing at least a portion of said observer data …”
• Step [3] “combining … with said observer data”.

Infernal argued that the agreed construction of “observer data” is open-ended, beginning with the words “at least,” and thus for purposes of infringement the “data” that qualifies as “observer data” in each step may be different, provided the set of “observer data” includes “data representing at least the color of objects.” In other words, according to Infernal Technology, if “observer data” includes Data Item 1 and Data Item 2, but only Data Item 2 represents the “color of objects,” not all references to “observer data” in the claims requires “Data Item 2.” Some may include only Data Item 1 and that would still infringe.  Activision disagreed.  They argued that they do not infringe because each instance of “observer data” must refer to the same type of data, not varying types in each instance.

While Infernal’s argument may have some appeal to inventors and practitioners, the Federal Circuit rejected it. The Federal Circuit agreed that all accused process steps that Infernal mapped to the Activision product for infringement must include “data representing at least the color of objects.” The court rejected Infernal’s argument that the “observer data” for step [3] could include only “data representing at least the color of objects” while the “observer data” for step [1] included the “color data” as well as other data. More importantly, as the court explained, the “portion” of “said observer data” for comparing in step [2] must include the “color data” because the agreed construction defined “observer data” to mean “data representing at least the color of objects.”

This demonstrates the need for careful consideration of even a simple term like “data” when drafting patent applications. While Infernal could have chosen alternate language to avoid this problem, its language choice here cost it the whole case. This highlights the need to have a “litigation mindset” when drafting patents claims. If the claims cannot stand up in court, they may not be worth having.