 Well, welcome to session three in security privacy and innovation reshaping law for the AI era. This symposium is co-sponsored by the Reese Center on Law and Security at NYU Law School, the Berkman Klein Center at Harvard University, Justice Security and the National Security Commission on Artificial Intelligence. It's my pleasure to welcome you all. My name is Ruth O'Kedige. I am a co-director at the Berkman Klein Center and your moderator for this session. The previous two sessions of this symposium have addressed responses to AI enabled surveillance and digital authoritarianism and the protection of constitutional values and the rule of law in the AI era. This is the concluding session, and this session is entitled protecting and promoting AI innovation, patent eligibility reform as an imperative for national security and innovation. Our session this afternoon will consist of two one hour panels with a 10 minute intermission in between. The first panel will feature a debate between arguments for and against reform to the patent eligibility doctrine. Those of you who are patent experts attending this webinar will know that this has been a hot topic for some years now. The debate around whether the US needs to reform its patent eligibility doctrine has been ongoing, as I mentioned, for some time, at least during the last decade. There were efforts at reform in 2019 on the hill that were stalled, but that did not end the varying opinions that continue to exist about whether we need to reform what we need to reform and why. Even how does the patent system and particularly the patent eligibility regimes affects the ability of the United States to expand innovation in AI and then other critical technologies is really the key question of the day. The National Security Commission on AI is an independent commission set up by Congress in 2019 and to really look at the intersection of national security and intelligence and associated technologies. The Commission assesses that we are in a technological competition with other nations, particularly with China, and focused in particular on securing national security and economic interests as well as in promoting democratic values. In March or on March one of this year, the Commission issued a final report. The second part of the report focused on winning the technology competition, including an entire chapter on intellectual property. The Commission's high level IP recommendations are that in essence the US should recognize intellectual property as a national priority and develop a comprehensive national IP plan to reform and create IP policies and regimes to incentivize expand and protect artificial intelligence and emerging technologies. The Commission also set forth a non-exhausted list of 10 IP considerations to assess and to inform policymakers in developing such new approaches to national IP strategies. One of these considerations is patent eligibility. What is patent eligibility and do current legal regimes need to be changed in light of national security and economic interests? We have a distinguished panel with us today. Many of them are not strangers and I'm delighted that they will be here to help shed light, contribute to the debate and reflect on the Commission's recommendations. We will start with our former Chief Judge of the Court of Appeals for the Federal Circuit, Paul Michelle, who will set the stage for us on why patent eligibility is a topic of discussion and why it's relevant to winning this competition globally. We will then have a debate between former USPTO Director Andre Iancu and David Jones, the Executive Director of the High Tech Inventors Alliance. Their debate will focus on whether the US patent eligibility doctrine should be reformed at all. Before we begin the discussion, there is a brief note on CLE credit. You should note that the event comprising both panels of this session has been approved for two credit hours of professional practice category for the New York State's CLE credit, so please take note of that. At a certain point in the program, just for logistics, we will pause to display and to read aloud a CLE course code or set of codes and so those of you seeking CLE credit need to record the code or codes and submit them on your attorney affirmation form. The most attendees, I believe all attendees, should have received a link to the attorney information form in their reminder email for the event, and the form can also be sent after the event is concluded. Please note that the event is appropriate for both newly admitted and experienced attorneys. I want to introduce Judge Michelle and I know of course many of you already know and are familiar with the judge, but I do think it's important to start with an introduction of the former Chief Judge of the Court of Appeals for the Federal Circuit. He served for more than 22 years on the Federal Circuit retiring on May 31, 2010. From December 2004 until his retirement, he discharged the duties of Chief Judge of this important court, serving simultaneously on the US Judicial Conference, the judiciary's governing body and by appointment of the Chief Justice on its seven judge executive committee. Judge Michelle, former Judge Michelle judged several thousand appeals he authored more than 800 opinions, one third of them concerning intellectual property law. Intellectual asset management magazine and ducted him into its Hall of Fame, he was designated as one of the 50 most influential leaders and intellectual property law in the world, his contributions have been recognized by the American Intellectual Property Law Association, the Property Owners Education Foundation, the ABA Association Intellectual Property Section and many more. In 2010, the Los Angeles IPN was remained in his honor. Judge Michelle received the Jefferson Medal, the Eli Whitney Award, the Katz-Reidli Prize, many other awards as well as an honorary doctor laws degree from Catholic University of America and the John Marshall Law School. He's written lots of articles on patent law advocacy, he's taught related courses at the George Washington University, the University of Akron and the John Marshall Law Schools. He's a frequent speaker. He was appointed a distinguished scholar in residence by IPO following his retirement. He continues to remain active in the intellectual property field, advising clients consulting for law firms, conducting moot courts, and of course advising on strategy and mediation services. It is an honor to have former Chief Judge Michelle here with us and I will invite him to speak and set the stage for the debate that will follow. Thank you so much Professor and I'm sorry to not be visible but hopefully I'm audible to our assembled group. Patent eligibility of course is the gateway, the threshold. There are five other tests that have to be met before a patent can be issued or before it can be upheld if challenged in court, but eligibility is the first of the six hurdles. The patent act itself in Section 101 established four broad categories as being eligible. They are processes, machines, manufacturers and compositions of matter. Those four categories have been essentially unchanged since the founding era and the first patent act of 1790. Over the many decades since then, however, the Supreme Court has created three broad judicial exceptions to those four categories for laws of nature, first, secondly, products or phenomena of nature and third abstract ideas. Now in my view for over 200 years, the regime that was in existence until 2012 was entirely workable was clear enough and could be consistently applied by patent examiners by judges and by others involved. In fact, challenges to eligibility were quite rare before 2012. In my 22 years on the court, I remember only two or three such challenges, but now there has been a sea change that occurred in 2012 because of a case which for shorthand we refer to as Mayo. Before Mayo, patent claim was ineligible only if it claimed the judicial exception itself, that was actually the word use itself, meaning essentially covering the law of nature or abstract idea and nothing else so that it would preempt anyone else from using it. After Mayo, the test was subtly changed in the unanimous Supreme Court opinion. So after Mayo, if in one of the many elements of a patent claim, one of these exemptions was merely recited, then the claim was presumptively viewed as not eligible, and could only become eligible if it was transformed, end quote, by the other elements of the claim that could be found to reveal a quote inventive concept, end quote. After the Mayo case, which was reaffirmed two years later in 2014, in a case we refer to as Alice for short, eligibility challenges in litigation and in the patent office became routine, hundreds and hundreds of patents granted after full examination by expert examiners in the patent office were invalidated as ineligible. And this new regime, in my view, created high level of uncertainty, unpredictability, inconsistent results across cases, and impossibility for inventors and investors to have confidence to rely on patents as stable assets. The case law unintentionally made previously clear doctrine, unclear and very difficult to administer, resulting in chaos or what was referred to by former director tapos as a mess. It meant that if someone got a patent, it could be later, even many years later taken away, either by the same patent office or by the courts, applying the new tests under the Mayo Alice regime, and therefore patents were viewed as no longer sufficiently reliable to incentivize all the investment and invention that they previously have. Perhaps the hardest hit area was medical diagnostics, but also computer implemented inventions such as AI are also now under a cloud when patented because of the way this test works out in practice. Ironically, while the US narrowed the scope of patent eligibility, the 27 European countries and most major Asian countries including China substantially broadened the scope of eligible inventions. And so hundreds and hundreds of actual inventions found ineligible in the United States have later been found eligible in those other jurisdictions. In the nine years since the Supreme Court Mayo case the Supreme Court has declined to clarify or revise its Alice Mayo test, despite receiving something in excess of 50 petitions. So requesting. Furthermore, the Federal Circuit has struggled to implement the Alice Mayo regime and its tests. And in doing so it has expanded the ineligible ineligibility standard of the Supreme Court. So as to hold essentially all medical diagnostics as a category ineligible. And there are cases in which that happened over and over and over involving famous institutions, including the Cleveland Clinic. Many of you know about cases such as Athena and Ariosa in which many of the judges of the Federal Circuit protested that the invention should be eligible but they felt unable to find it eligible because of the statements of the Supreme Court in the Mayo case and some that were repeated in the Alice case. Michelle, can I ask a question while while we're on this point. Sure, it might be helpful for our audience to hear what you think the challenges are to addressing the patent eligibility column and in particular, what efforts has Congress undertaken in the last few years to address this and do we have any results can we expect anything there what's your sense. Well, my view is that it's shared by many, many people though not universally is that the law needs much greater clarity patents need more reliability. And therefore, the Congress should clarify its intention as embedded in section one on one and the four categories I mentioned. And if there are specific things that need to be excluded such as perhaps patenting of genes, then that could be done legislatively and other things would be viewed as eligible and would get patents if but only if they could pass the other five tests in 2019. Then IP subcommittee chairman Coons and ranking member tell us led an effort to come up with a legislative solution. They held numerous round tables of 60 or 70 very diverse stakeholders and ultimately held hearings as you mentioned in June of two days of hearings 45 witnesses by my count 40 witnesses agreed the law was a mess and needed to be legislatively corrected. Five disagreed and said the status quo was good enough. As you mentioned professor is the effort stalled over the summer of 2019 and ever since there have been attempts to revive it and right now there are ongoing negotiations, including some being heard from in these programs. There will be a third negotiation session in October supervised by the staff of Senator Tillis hard to predict when or if it will bear fruit. But that's the current state of affairs to try to revive efforts to address legislatively the chaos that has ensued unintentionally from the Alice may regime so only time will tell. Thank you so much. Let's turn to director young who and and Mr Jones and really open this up. Thank you. Thank you Michelle because I think you've raised certainly the leading concerns and the, the pathway here has been long and difficult and and so let's hear from two individuals who are not unknown to this audience and so I will skip our introductions because they both have lengthy and impressive bios, but I suspect you're all here to hear their thoughts on this point and so I'm going to ask both Dr Yankee and and and director Jones director Jones to speak to the proper function of patent eligibility eligibility. And is that function being served by the current case law PTO practice and policies directory uncle I'm going to begin with you, and then director Jones I will turn to you but in light of judge Michelle's reflection and expressions of both concern and some dismay perhaps where we are, let me start with director young who and then turn to director Jones. What is the proper function of patent eligibility. Okay, great. Well, thanks Professor and great to be with everyone. So I generally agree with judge Michelle that the law in this area of patent eligibility is in an unpredictable phase right now and has been for about a decade or so. Well, why is this important, like all laws predictability is key. This is especially true in the patent system. And, and why is that, well, innovation and frankly investments in new technologies in the United States require the private sector. We need our private sector to participate. The private sector need the certainty of a patent system to to protect the investment they have made in those innovations. And this is true is specially for disruptive technologies, especially for new newly created technologies very risky technologies those that we really don't know if they're going to work. Such as the very fast development nowadays of artificial intelligence, and many other things. So clarity and predictability are key. Now, turning to patent eligibility. As judge Michelle said, this is the first threshold question. When we look at the various requirements as to whether a patent should be granted or not. The very first question we need to ask is, is this new creation. What is the patent system at all. Let me make it just very just give a very simple example. There's lots of new creations in the fine arts paintings, music, all sorts of things like that, that are not subject to the patent system, many of them are subject to the copyright system, for example, scientific technological practical applications of those principles usually are subject to the patent system. What's happened in the past several decades is that the technologies have become more and more difficult to square with the stat through the eligibility statute, which as judge Michelle indicated was written by Jefferson and Madison at the founding of this nation. The statute has originally written in 1790 1793 says, and it's effectively unchanged to this day says that what's patentable are useful processes machines manufacturers or compositions of matter. But as we get into more and more advanced technologies such as artificial intelligence, potentially, you know, blockchain, cryptography, quantum computing DNA analysis. Today, as brilliant as our founders work and they wrote the statute. They certainly didn't anticipate those things. And so the statute haven't hasn't changed technology certainly has changed a lot and courts have struggled to figure out how to fit these new technologies into determine, are they subject to the patent system or are they perhaps, or should they be outside of the patent system. My personal view is that since technology has moved so much since the founding of this nation, it is time for our policymakers, Congress in particular to take another look and weigh the pros and cons of the outer bounds as to what's in and out of the patent system, because what we need most of all is clarity and leaving it up to the courts. One case at a time has made it very difficult and resulted in the situation. We are in right now. One final point before I turn it over to my colleague David Jones is this. The courts have issued their, it's a whole body of law, especially in the past decade on this issue, although it goes back several decades but very active, and most problems arise out of the cases from the last 10 years or so. So what the US patent office has done, because we see at the US patent office, approximately 700 over 700,000 patent applications a year that this analysis has to be done on. And there's lots of cases to square these, these new applications with. So what we have done in 2019 is to issue new guidelines to our examiners that synthesize the, the court decisions and create a more predictable path, an analytical path to make this patentability decision. And the approach, a new analytical approach that we have employed at the patent office is to the patent office is 2019 really has improved the predictability of patentability decisions. We know this because we, our chief economist at the US PTO issue the study last year that indicated that the uncertainty of examination with respect to this section of the patent code has decreased by 44%. So that's a major improvement, but obviously the administration has to work within the existing body of law. We cannot change the body of law, that's only up to Congress. So if we are truly going to stabilize the system and return to a more predictable patentability determination, we need an act of Congress. So I think I hear thank you so much. Director Yonku, who has just to clarify for the audience, former US PTO director, and, and we will be turning now to hear from executive director Jones who is with the high tech inventors Alliance but I want to just highlight two things that Director Yonku whose comments reveal one is question of institutional pathway. Is this is this really a job for Congress, are we at a point of time in history that we've never seen before where the courts have not been able to recalibrate this this question. But there's also the fact that the federal circuit, you know, doesn't have to, unlike other countries, abide by the PTO's guidance and guidelines so when once we begin the conversation a bit more in a more fulsome way I'm going to be curious to hear. If you think the predictability point that the guidelines might provide is undercut by our unique system in the United States where really we have three different bodies making patent policy in very distinct ways I'm going to turn now to David Jones who I believe has a different perspective. So over to you, director Jones, what is the proper function of patent eligibility and what is your view is the institutional pathway where potential change might might be necessary, or perhaps not. Thank you, Professor. So I thought my statement kind of was going to be controversial here that the purpose of eligibility is to distinguish between subject matter that's appropriate for patenting in subject matter that is not appropriate for you wouldn't believe it, but in the hill debates that's actually a controversial statement. I think directory Anku and I it sounds like agree on that. So, you know, I think that's the function is is the kind of current eligibility case law performing that function. I guess my answer would be it's not perfect. It's relatively predictable. I mean, not only has there been the 40% decrease in uncertainty in kind of the patent application process and the application of one on one in that context. You know, all the empirical studies that I'm aware of that looked at this have found that in almost all technology areas applicants responded very very quickly to the changes in law and drafted different applications. You see this kind of new generation of applications that were drafted after Mayo and Alice, you see 101 rejections that are in many cases with many technologies actually lower than they were prior to these case law developments. Right, and that suggests that there isn't unpredictability if applicants were able to respond. Clearly they were able to predict the outcome in advance, you know, when they were drafting their applications. And so, getting back to the purpose of eligibility, you know, I think it's important to remind everybody that there's a historical context here right so in an international one. Every country historically and almost every country currently does not allow things like aesthetic creations this director young coup mentioned to be patent eligible, but you know it goes way beyond just aesthetic creations. So typically, you know anything that is an abstract idea is excluded from most of the major patent systems that you have from patent protection or most of the major patent systems. I think this is a very important thing to have happen I mean there there's actual empirical evidence that the patenting of abstract ideas reduces rather than increases investments and R&D. In other words, the patenting of things like business methods has exactly the opposite effect of what the patent system is supposed to have. At least one scholar had looked at this empirically and found that companies who were obtaining business methods right applying for and being granted business method patents, prior to Alice. After Alice increase their investments in R&D, because those patents were no longer available. So it's a little counterintuitive but this is something that you know that has been believed by many over a course of several hundred years. The patent protection should be limited to actual technology that you know the types of fields that you would learn in a vocational school and engineering school, rather than pure sciences aesthetic creations fine arts or the social sciences. I guess to conclude, you know how was Alice, how are Alice and Mayo doing at distinguishing between appropriate and inappropriate subject matter I'd say they're doing much better than the prior case law, which allowed eligibility for everything pretty much. I know I know we're, I know you're ready to get at each other and I want to make sure that we don't exclude Judge Michelle from this conversation because there is a point of engagement that is critical here and one is directly on to Mr. Jones he mentions that actually what you described as unpredictability and lack of clarity is is proof of other words that's not eligible. Now one that we're actually having the same conversation. Two questions one is, should we recognize a firm boundary around one oh one. And so, to whom, should we direct the responsibility of deciding or but I just want to keep those two things in view. I'm going to invite you to respond. Sure. And I didn't get the whole question professor because I think you were going in and out at least for me, but I think I got a gist of it. Just, I want to make sure that I'm being heard well please interrupt. Let me know if I, if somehow I'm, it's on my end. So, look, there's, there's several things here. I apologize for interrupting but if you could speak directly also to the AI issue which is really the question on on the table now in responding I just wanted to clarify that. Absolutely. So, first of all, with respect to the courts and you asked this question a little bit earlier professor are the courts undermining the administration zone guidelines. The fact is, and this is not going to change the fact is we have an independent judiciary, and it should be that way we have separation of powers between the branches. This is the bedrock of American of the American constitutional system, and the courts are not bound by what the administration does. But they could voluntarily pick up what the approach that the patent office has done now that we see that it is working very well in other words, the unpredictability of results as they've mentioned since as I mentioned has indeed gone down at the USPTO applicants and predict better now, during the application process, how things are going to turn out. So, and it's working, and it's following the case law. It's, it's, you know, it's just it's it's only, it's not a substantive change that took place at the patent office it's just an analytical change. It's a framework of analysis to be able to step through it in a logical manner that that is is that that leads to more predictable results, and courts could do that or something similar to it if not identical, but they're not doing it and that is what what leads to unpredictability on the litigation side, or whenever things get to the court system. Because I do think we have more or less address the issue and on the on the administration side on the patenting side of things, but but if courts are not going to change their approach, then, then we have overall the whole system, we don't know what the result will be years down when the patent is to be challenged to address a couple of David's points, especially vis-à-vis artificial intelligence. I don't think there is a substantive disagreement between what Dave Jones is saying and what I am saying as to what should be in and what should be out. Or if there is, it's a matter of fair debate and that's what Congress is meant to do right Congress balances pros and cons of various things, and decisions can be made, should business methods be in or business methods be out, things like that. I think there's general, more or less there's never uniformity of opinion but there's general agreement this through the broad categories of things, they should be in and should be out. The question is a procedural one, and, and what framework do you follow in order to be able to be to decide what is in and what's out and artificial intelligence is a key example of this. So, Dave says correctly so that abstract ideas should not be eligible for patenting. I have me personally, in my personal capacity I happen to agree with that. The question becomes what is an abstract idea. This is the problem. And this is especially acute in artificial intelligence perhaps more than anywhere else. A business method where we talk about, gee, how do we increase the number of sales of a particular widget on an internet platform is very different from, you know, the processing of information through mathematical formulas in order to enable computers to engage in machine learning and generate new thoughts on their own, very different. Yet, under the courts approach to abstract ideas, they're treated basically the same. The mathematical formulations are viewed as abstract ideas to a large extent the processing of information is viewed as abstract ideas, and there is no boundaries provided by the courts. When they do their analysis that result in a predictable outcome. This is the key in my opinion. Congress, if Congress is to act here, it needs to provide the framework to be able for all of us to distinguish what is the stuff that we don't want to patent, such as the pure business method for example if that's the decision made, a practical technical application, such as deep learning by machines, which seems to me at least, I don't know if they would agree but to me at least it seems like that should be eligible for for patenting. But at least me to know what the outcome should be. Thank you so much. I think that that director Yankee youth, you've raised some counterpoints, and I think also clarified the need for a framework there's still the, and it sounds like you do agree that this is a matter that Congress should attend to but I think, David as you respond to this, it would be helpful to ask the question about implications, what are the implications of our current doctrine for the advancement of AI and other emerging technologies like quantum quantum computing. If we frame it as a national question of national competitiveness, should that change the way we view 101 is 101 effective as a vehicle for for concerns about national competitiveness vis-a-vis other nations that seems to be the elephant that is certainly part of the parade of elephants, whenever we have this debate so so David let me let you respond to the director and, and also to judge Michelle, who also spoke very clearly about the need for Congress's intervention. I do have a couple of points in response to director Yankee we, I think, you know, if you're listening to this it's going to sound like we agree mostly and I actually think we do agree mostly on this. The real sticking point is so so any any eligibility system to be workable has to do two things. One, it has to define what's eligible and distinguish that from what's ineligible, but it also has to deal with situations where you just include token language so so if abstract ideas are out. The question becomes, what do you do if you claim an abstract idea, and then add the magic words on a computer. Right. And if that makes abstract ideas patent eligible, then at least in the world that I live in in the tech world everything operates on a computer, you know, nowadays, almost everything the world involves a computer, if just adding those words on a computer, or adding a preamble that says a processor configured to is sufficient to satisfy the eligibility requirements then you go back to a system where you actually just have no line at all right anything is patent eligible you just have to add the kind of token magic words. As the unpredictability in litigation since this is an AI firm that there's a very interesting paper out there, where a guy used a an off the shelf module AI module machine learning and trained at using claims that have been held invalid and got the AI and relatively simply was not using like advanced manic semantic analysis or anything like that it's just a word salad approach, he got to about an 80% accuracy rate, which in the law is pretty high. So I think you know in in litigation as well. It's relatively predictable how cases are going to come out. And I'm blanking on what you asked us competitiveness. So yes, let's let's switch back because that is a key issue. The important point here is that the US PTO grants more patents to foreign inventors than us inventors. Right, and that's something that's important to realize is the international context here under the trips agreement all the trip signatory countries the member countries, and I think they're something like 164 165 of those so it's basically the world everywhere you want to patent and are obligated to treat foreign inventors in exactly the same way as they treat domestic inventors into treat foreign inventions in exactly the same way as they treat as they treat us inventions. As a result of that any change that you make in the law isn't going to have an effect on your international competitiveness vis a vis any of these other kind of trips member countries. You know you cannot incentivize somebody through the patent law that you have domestically to either do you know bring r&d from another country to the United States or mark migrate r&d from the United States to another country, because, you know the the inventor who's in the US, you know let's take an example. The veteran who's in the US, it frustrated with Alice perhaps is going to be you know if he moves his ear she moves her r&d to China to get a US patent. She will still have to face that frustration with Alice right so that's completely unchanged, and she can get a Chinese patent from the US right so changing the r&d moving things from one jurisdiction to another has no impact on r&d choices I mean at least with respect to r&d choices that might be based on the patent system it just doesn't it doesn't play into these decisions. Let's pause for a brief minute so that I can have our administrators who are wonderfully behind the scenes display the CLE course code. Many folks are taking precious time away from billing hours and so let's make sure that they get the course code for this. We're calling in the course code is RCLS887. Let me repeat it the course code is R for Robert C for Charlie L for like S for Sam 887. Thank you. Judge Michelle I wanted to to invite you to to intervene briefly to what is the emerging tension between David's point and director Yankee's point. You have clearly articulated a need in your view for congressional action and I think something that certainly patent law students my patent law students are interested in hearing about and is well why is this different why is artificial intelligence different. And what are the implications of that difference if Congress does not act. So artificial intelligence according to numerous experts is the key technology of the future that will infuse itself into almost every kind of product and activity. So it couldn't be more important. It's clear that in advanced technologies of the new century. Most invention is very expensive, and therefore strong incentives are needed to convince people who control money whether they're corporate CEOs or venture capitalists or others to make those risky, slow investments. And that's why it's so important for the patent system to work in this area as in others. You know when David Jones says there's plenty of predictability at least that's what I heard him to be saying. There is in his eye but when I look at 100 federal circuit or district court cases and I read the patents and then I try to guess what will the outcome be as to eligibility. I have no idea and I'm wrong almost all the time. The line doesn't exist. It's not just unclear. It doesn't exist. What's happening is judges are eyeballing a claim and saying it looks abstract to me case dismissed without claim construction without evidence without prior art without expert testimony. It's complete chaos so you don't have the predictability that's needed to incentivize the investment because of a failure at the courts. First the Supreme Court with vague statements in Alice and Mayo and two other cases but particularly Alice and Mayo and the federal circuit is completely failed in my view to clarify the law to rationalize it to make it more consistent or coherent. In fact it's actually made it much worse because it's front loaded into the eligibility analysis. All the other five tests like adequate written description full enablement claim definiteness non obvious is novelty. So now everything is a matter of eligibility and it's the defensive choice in virtually every case and the results are unpredictable. So capital is fleeing the United States and fleeing hard technology for less risky investments and that to both venture capital and also corporate capital. So we're destroying our future because we can't get our act together. So David I see that you want to jump right in there so I'm going to let you have a 30 second comment or let's say 90 second comment. I mean I have to say I just don't think that's accurate again under the trips agreement. There is no reason R&D would be migrating to other countries and when you look at what people say when people are asked corporations for us. Are you moving money to Asia for R&D or are you moving R&D functions to Asia and if so why. The top things that they list are nothing to do with the patent system. It's like access to Marcus access to human capital these types of things. So to the extent that R&D is migrating. It's clear that it's not migrating because of patents as the predictability issue. I guess all I can say is a guy actually trained in AI to get to 80% accuracy in predicting. You know to say that it's absolutely unpredictable I think is just not true. And I guess my last point would be you know I didn't really give my spiel about who HTIA is but you can think of it as a bunch of big tech companies. But you know my members include a number of the top patent owners in AI and a number of the top patent owners in quantum computing. These are the leading companies in the world doing this stuff. And they tell me that there's no problem here that they don't have a problem in litigation that they don't have a problem obtaining appropriate patent protection from the office. And you know I think it's important to recognize that the industry itself. Right I mean I have two members that have actually produced a working quantum processor which only a handful of entities in the world have done. So you know the people that are really doing the cutting edge work here don't feel that there's a big problem. They just simply don't agree. Professor if I could respond I'll take 30 seconds. Yes please and actually it's important to ask this question. So directly on cloud was going to put it to you as you responded. You know the trips agreement which David has raised does require no discrimination and field of technology so one question that we ought to as mostly lawyers gathered around this webinar is. The violation of trips by not including a I as PSM is that is that something that concerns you as a former director of the USPTO. And I think then for all of you I will invite you to weigh in later on the question of impact one of our challenges is it one on one applies to all technologies all industries all companies and all sizes, and the balancing that happens happens at the court level, and we may need to think about that but directly on could you address the question of trips violation. Yeah, look there are some folks out there that do argue that this, the de facto rules created by the 101 jurisprudence in the United States does create a violation of trips, because as a de facto matter, certain areas of technologies are of technology are out of our patent system. For example, diagnostic techniques, you know that tests to diagnose whether we have a human being has a certain condition or not. So by the Federal Circuit has said that by and large, none of those have been approved for patenting under the recent under their recent jurisprudence. Well, if that's the case, that's an area of technology that is being treated differently than others. So some have argued that that is a trips violation similar type arguments vis-a-vis information processing techniques. Having said that I personally don't have a view on that. I don't know if this is actually a technical violation of trips, but I don't think that's either here, neither. I think that's neither here nor there because the issue, the real issue is what is the impact on innovation in the United States. Ultimately what we really look the patent system is a tool. It's a very important tool, but it's just a tool for the ultimate goal of creating more innovation and getting more technologies invented and brought to market. Let's keep in mind the real important aspect of innovation is the investment of capital in brand new, very risky technologies and ventures. And we have to keep in mind the startups, the small and medium enterprises and all the companies that depend on venture capital investment and need a reliable patent system to secure that investment. And if that doesn't happen in the United States, if those protections are not in the United States, therefore reducing the amount of investments, private sector, venture investment in these risky technologies that capital is going to flee overseas. But Director Yanthu, I'm sorry to interrupt you, but David who represents many of these companies says that's not happening. He doesn't represent these companies. That's the thing. He represents Google. I don't want to speak for his membership, but I believe it's Google, Cisco, Intel, Microsoft, Salesforce. I'm sure I'm leaving somebody. Michael, Micron, Samsung, and I'm probably leaving somebody out, so I'll get in trouble after this, but you get the idea. It's large tech companies. Okay, so David represents large tech companies that are very important, that are very important players in the space, but they have other business calculus calculations. So for them, whether they do the R&D in China or in the United States, maybe it doesn't make a big of a difference. Having said that, I think the proof in the pudding is where is the United States right now vis-a-vis China on many of the technologies of the next industrial revolution. Take deep learning, for example, China takes out six times as many patents worldwide than the United States. Take 5G and 6G. Where is the United States vis-a-vis those technologies and installations around the world? We're not even close. And then take artificial intelligence. All you have to do is read the excellent report from NSCAI on these issues to see the competitive threat under which we are now. There are many issues that go into this, but intellectual property protection is a key ingredient to making sure that enough investment is made in the United States in our AI and all of these other technologies so that we can compete on the innovation in the innovation ecosphere on a worldwide scale. Ruth, if I could respond to that very quickly. Okay, please do. And then there's a question from the audience that I want to really pose to the both of you. I just don't think that the impact on investment in R&D is being accurately stated. One of the points of the international patent system set up under their trips was to divorce the location in which the invention was conceived from the entitlement to patents. And so you have exactly the same ability to patent if you do the R&D in the United States or in China. Therefore, any kind of domestic patent issue cannot, by definition, create an incentive to move R&D to another country. It just doesn't happen. No, it may not happen by itself. I mean, I would take the medium point between you and the director. It may not be the sole consideration, but I think the director is saying it is a consideration. Director, you wanted to respond? Yeah, if you look at venture capital dollars for small and medium companies, there are small companies that want to start their businesses here in the United States. What are we saying? What are we saying that they should go do it in China because their capital is more secure there if they come up with a new thing? Now, I understand that if you invent something in China, and then you can still apply for a patent here in the United States. Not directly germane to the main point, which is what we need to do here to invent to incentivize new dollars, new companies, new startups and new technologies to be developed here in the United States. So somebody asked the question about whether the problem is language. In other words, why is AI such an issue? If we replace it with machine learning or applied statistics, would it be different? No, I don't think so. I don't think it's just a language problem. AI is fundamentally different from many of the things that came before. In part, it's because most of the AI research that's being done now is being done in the area of machine learning. And that results in some kind of quite odd interactions with the patent system, but mostly in my view, outside of the 101 context, creates real, in my view, again, 103 and 112 issues. Yeah, so look, I agree with that. And the fact is I don't think Dave and I would disagree on the fundamentals here. It's not a question, the fundamental of whether a particular technology in this area should be patentable or not. It's not a question whether it's machine learning or artificial intelligence. The net and the phraseology, the key here is the unpredictability because these technologies use mathematical formulas and algorithms. They're very practical results from these algorithms. They do stuff for us. But because they use math, the Supreme Court has said that, look, because they use math, that could be abstract. And unless there's something more beyond that, we cannot be patenting math. I think there's broad agreement with that point. But the question then becomes is what is it beyond the pure math that you need. And this is what the courts have left unsaid to a large degree. And this is why I believe that we need clarification from the legislature on that point. But obviously there's this agreement on that specific point, whether we need further clarification. Or whether in true common law style, the evolution of the law will adjust over time. David, you have the last word. So I take any clarity I can get. So no system is perfect. And I completely agree that increasing clarity and predictability is always a good thing in leaking systems. I guess my question is an institutional one. Is Congress and any act of Congress likely to increase predictability and clarity? And on this particular topic, I would say no, I'll also point out that there are economic studies out there that have looked at what happened to venture capital after Alice for small kind of software and tech startups. And found that they found across the board that it was associated with increased access to venture capital rather than decreased access to venture capital by us startups. Well, let me just say thank you to our panelists for a really rich and honest debate. This is an important question, not only for patent policy, but really for national competitiveness and our consideration of what we can do with the patent leavers. So thank you to Director Yonku, to David Jones, to former Chief Judge Michelle. We're so grateful. Thank you so much. We will reconvene in 10 minutes for a more full-throated debate. Thank you to our audience for your participation as well.