2024 predictions for tech IP disputes
The year 2023 undoubtedly will be remembered for a host of issues that touched on nearly every aspect of our personal and professional lives. IP and technology litigation are no exceptions.
As legendary baseball player Yogi Berra once said: “It is difficult to make predictions, especially about the future,” but, nonetheless, this article offers predictions on what may lie in store for technology and IP litigation in 2024.
Broadly speaking, we believe there is likely to be an increase in tech and IP litigation in at least three areas: artificial intelligence (AI), semiconductor technology, and energy/e-vehicles (EV)/sustainability technology.
Litigation involving AI
2023 saw several milestone developments in regulating AI: China adopted new rules for AI in August, President Biden’s AI-focused Executive Order was issued in October, and in December the EU agreed on the details of the AI Act.
As these frameworks are adopted and enacted, the industry will likely gain clarity on how AI will be regulated. For example, Biden’s Executive Order directs federal agencies to use their rulemaking power to address agency-specific AI issues.
2024 will likely see significant activity from federal agencies enacting regulations in response to the Executive Order. In Europe, we may start to see the first enforcement under the AI Act, which allows for fines up to 7% of a company’s global turnover for failure to comply.
Last year saw the filing of many copyright cases dealing with whether copyrighted materials can be used (in the absence of owner consent) to train AI, whether the AI outputs are substantially similar to a copyrighted work, ownership rights, who should be liable, notification requirements when AI is used, the creation of derivative works, and the applicability of the fair use defence. As these cases progress in 2024, we should expect to see milestone opinions as courts grapple with these novel issues for the first time.
As for the use of generative AI in the legal space, certain courts have caught and sanctioned attorneys using ChatGPT to draft and submit legal briefs involving “hallucinated” or made up non-existent case law. Courts throughout the US have now adopted rules requiring attorney certifications identifying any portion of the filing that was drafted by generative AI or that no generative AI was used.
Now that courts are paying attention, we should expect additional crackdowns in 2024 for attorneys who fail to involve human supervision and verification of AI-generated content before it is used in court submissions. Just as companies have outside counsel guidelines regulating billing practice, we may start to see similar guidelines regulating whether and how a law firm can use AI in connection with client work, including how to use AI consistent with preserving privilege and client confidentiality.
Additionally, there are many AI tools being developed that are being used to identify potential patent, copyright, and trademark infringement as well as trade secret misappropriation. As the use of these tools become pervasive, 2024 may see an increase in litigation as infringements and misappropriation that previously went undetected are being identified by AI tools.
Semiconductor technology
The global semiconductor industry is expected to begin to recover in 2024, with all segments projected to log year-over-year increases. However, the industry will continue to face supply chain challenges, including geopolitical issues, cybersecurity threats, and talent shortages. While the semiconductor industry is expected to recover, it will also face several legal challenges.
In recent years, the industry has been grappling with several legal challenges including patent infringement lawsuits, antitrust investigations, and trade disputes. These challenges will all continue in 2024; however, the industry should expect additional legal challenges related to data privacy and environmental regulations.
Data privacy is a growing concern for the semiconductor industry, as more devices are connected to the internet and data breaches become more common. The industry may face legal challenges related to data privacy regulations, such as the General Data Protection Regulation (GDPR) in Europe and the California Consumer Privacy Act (CCPA) in the US.
IP is another area where the semiconductor industry will continue to face legal challenges. The industry relies heavily on patents to protect its innovations, and patent infringement lawsuits are common. In 2024, expect the industry to face legal challenges related to the ownership and licensing of IP, particularly in emerging technologies such as artificial intelligence and the Internet of Things.
As part of the CHIPS Act of 2022, the United States Patent and Trademark Office recently initiated the US Patent and Trademark Office Semiconductor Technology Pilot Program designed to expedite the examination of patent applications for innovations that increase semiconductor device protection, reduce semiconductor manufacturing costs, and strengthen the semiconductor supply chain.
Under this pilot program, qualifying applications will be advanced out of turn for examination (granted special status) until a first action is issued. The program will be available until December 2, 2024 or until the USPTO accepts 1,000 grantable petitions (whichever is reached first).
Finally, the semiconductor industry may face legal challenges related to environmental regulations particularly in the US. The industry is a major consumer of energy and water, and it generates a significant amount of waste including greenhouse gas emissions. In 2024, the industry may face legal challenges related to environmental regulations, such as emissions standards and waste disposal regulations. Indeed, with lawmakers’ push to revive US chip manufacturing and spurring of semiconductor innovation, the environmental review process under both state and federal laws may have a direct impact on US-based manufacturing.
Energy/e-vehicles/Sustainability technology
Technology addressing sustainability issues, including innovations in the energy and EV spaces continue to rapidly evolve and enter new market spaces. It is expected that in 2024, these efforts will lead to an increase in IP disputes, most notably patent and misappropriation of trade secret litigation both here and in Europe. Five trends define this prediction:
- Innovative battery chemistries
