Now more than ever, technology is influencing the way we do business, communicate, move through and around the world, access and manage our homes, receive and administer healthcare, make purchases, secure information, and protect our most valuable property. Morrison Foerster keeps pace with this rapidly evolving landscape across our internationally recognized corporate, finance, intellectual property, and litigation practices. MoFo Tech brings together our insights relating to fields such as blockchain and distributed ledger, cloud and as-a-service technologies, driverless cars, drones, fintech, computer hardware and software, the Internet of Things, semiconductors, and telecommunications. The MoFo Tech blog offers real-time, in-depth analyses of the trends and complex issues shaping the global technology industry.<h2>ABOUT MORRISON FOERSTER</h2>Morrison Foerster is a leading global law firm that transforms complexity into advantage for its clients. Our clients include some of the largest financial institutions, banks, consulting and accounting firms, and Fortune 100, technology, and life sciences companies. Highlighting the firm’s commitment to client service, leadership in market-changing deals and impact litigation, and values-based culture, Morrison Foerster has been repeatedly recognized as one of the top 10 firms on The American Lawyer’s A-List. Year after year, the firm receives significant recognition from Chambers and The Legal 500 across their various guides, including Global, USA, Asia‑Pacific, Europe, UK, Latin America, and FinTech Legal. Our lawyers passionately care about delivering legal excellence while living our values. Morrison Foerster has a long-standing commitment to creating a culture that respects and celebrates differences, while providing an inclusive environment. The firm has achieved Mansfield Certification Plus since 2018 as a result of successfully reaching at least 30 percent women, communities of color, and LGBTQ+ lawyer representation in a notable number of current leadership roles and committees. The firm also has a long history of commitment to the community and society through providing pro bono legal services, including litigating for civil rights and civil liberties, improving public education and fostering the wellbeing of children, advocating for veterans, promoting international human rights, enforcing the right to asylum, and safeguarding the environment.

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Scott Llewellyn’s practice focuses on complex litigation in federal and state courts around the country, with an emphasis on patent and trade secret disputes. Over the past decade, he has worked on some of the most significant, high–profile IP cases involving technology for televisions, smartphones, and self–driving cars, relying on 40 years of experience with computer hardware and software. Scott also has significant experience with business divorce cases before courts and arbitrators, involving a mix of trade secret, patent, tort, and contract claims relating to technology development and implementation.Scott also has successfully tried general commercial arbitration and agency matters, briefed and argued various appeals in federal appellate court, and tried more than 20 cases for the Denver City Attorney’s office, most of them jury trials.Scott also has an active pro bono practice, having worked on a variety of criminal and immigration appeals, and having represented Colorado criminal defense and mental health organizations in high–profile suits against the state of Colorado for violations of the constitutional rights of defendants.At MoFo, Scott serves on the board of the Morrison & Foerster Foundation. In the broader legal community, he serves on the boards of the Colorado Lawyers Committee and Drop in the Bucket (a charity that builds wells and sanitation systems in sub–Saharan Africa).After law school, Scott clerked for the Honorable Clarence A. Brimmer, District of Wyoming, and the Honorable Diarmuid F. O’Scannlain, Ninth Circuit. He was also previously an adjunct professor at the Georgetown University Law Center.

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Partner

Scott Llewellyn’s practice involves complex litigation before state and federal courts around the country, with an emphasis on patent and trade secret disputes for high-tech companies, to which he brings more than 35 years of experience with computer hardware and software, in particular relating to the processing and transmission of audio, video, voice, and other types of data. Mr. Llewellyn has also tried commercial arbitration and agency matters; briefed and argued various appeals in federal appellate court; and tried more than 20 cases for the Denver city attorney’s office, most of them jury trials.

Scott F. Llewellyn

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MoFo Tech brings together legal insights and in-depth analyses on trends and complex issues shaping the global technology industry, covering fields such as blockchain and distributed ledger, cloud and SaaS technologies, driverless cars, drones, FinTech, computer hardware and software, the IoT, semiconductors, and telecommunications.

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MoFo Tech brings together legal insights and in-depth analyses on trends and complex issues shaping the global technology industry, covering fields such as blockchain and distributed ledger, cloud and SaaS technologies, driverless cars, drones, FinTech, computer hardware and software, the IoT, semiconductors, and telecommunications.

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AI Transparency in Healthcare: Navigating a Changing Regulatory Landscape

Recentive: Federal Circuit’s Patent-Eligibility Guideposts for Machine-Learning Inventions

Japan’s Approach to AI Regulation in 2025

Federal Circuit Clarifies Requirements for Prior Art Under Pre-AIA 35 U.S.C. § 102(e)

AI Agent as a Service in Medtech - Key Considerations for Commercial Contracts

In September 2022, the U.S. Food & Drug Administration (FDA) released its Clinical Decision Support (CDS) Software Guidance and the final report on the Software Pre-Certification Pilot Program. The new FDA policies move away from prized flexibilities in the previous guidelines governing software products. In the new and final CDS Guidance, FDA modified its interpretation of each of the four criteria in section 520(o)(1)(E) of the Federal Food, Drug, and Cosmetic Act, significantly narrowing what FDA considers exempt from regulatory authority. FDA also released its report, Digital Health Software Precertification (Pre-Cert) Pilot Program: Tailored Total Product Lifecycle Approaches and Key Findings, detailing the results of the pilot program and ultimately shutting down the initiative. FDA originally envisioned the precertification program as a way to adapt regulatory processes originally intended for hardware medical devices to match the faster pace of development and update cycles of software as a medical device, particularly artificial intelligence and machine learning functions. Although FDA reported that the pilot provided key insights and a better understanding of the concepts in the proposed program, it concluded that it lacked statutory authority for the program and that implementing it “would require a legislative change.” At year end, best practices, materials, and potential product risks in the digital health industry are still novel concepts. To ensure successful continued development of these products, medical device manufacturers will need to stay up to date on the evolving standards in this space as we enter 2023.This post is a part of a series on trends in the artificial intelligence space for 2023, authored by MoFo lawyers.

Fertility Center Litigation

Fitbit

MicroPort

Leading Healthcare, Pharmaceutical, and Medical Device Company

Lethal Injection Matters – Major Pharmaceutical Company

Pain Pump Matters – Large Pharmaceutical Company

Major Technology Company

Leading Chemical Company

Security Device Company

In re Air Crash Near Peixoto de Azevedo, Brazil

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Co-Chair, Litigation Department

Erin Bosman is the global co-chair of Morrison Foerster’s litigation department. Erin is also the founder and co-head of the Artificial Intelligence group and former chair of the Complex Litigation + Advisement practice group. Clients value her business strategy, seeking her comprehensive counsel throughout the product life cycle, especially in high-stakes litigation and product recalls.

Erin M. Bosman

Erin Bosman is the Global Co-Chair of Morrison Foerster’s Litigation Department. Erin is also the founder and co-head of the Artificial Intelligence Group and former chair of the Complex Litigation + Advisement Practice Group. Clients value her business strategy, seeking her comprehensive counsel throughout the product life cycle, especially in high-stakes litigation and product recalls.

Erin Bosman

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AI Trends for 2023 - FDA Regulatory

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In September 2022, the U.S. Food & Drug Administration (FDA) released its Clinical Decision Support (CDS) Software Guidance and the final report on the Software Pre-Certification Pilot Program. The new FDA policies move away from prized flexibilities in the previous guidelines governing software products. 

AI Trends for 2023 - FDA Regulatory

The prevalence and power of AI technologies are rapidly expanding, both at the captivating cutting-edge of creative AI models like the DALL-E image generator and the ChatGPT chatbot, and in the increasing pervasiveness of household and industrial applications of AI systems like autonomous vehicles and intelligent virtual assistants.The ascendance of AI technologies continues to be clearly reflected in patent filing trends. Innovators have filed hundreds of thousands of patent applications directed to AI-related inventions in recent years, making AI the fastest-growing major technology area in global patent filings, boasting a 28% average annual growth rate from Q1 2018 to Q1 2022, according to a report by GlobalData. The highest-volume patent filing areas within the AI space have been machine learning (ML) models, speech recognition, image analysis, and natural language processing systems, while other areas seeing rapid AI patenting include autonomous vehicles, robotics, medical devices, laboratory and assay equipment, bioinformatics, chemometrics, drug discovery, diagnostics, and personalized medicine.The United States Patent and Trademark Office (USPTO) has also recognized the increasing importance of patenting in the AI space. In June 2022, the USPTO kicked off its AI and Emerging Technology Partnership, a cooperative effort between the USPTO and the AI community that the USPTO says will “foster and protect innovation in Artificial Intelligence (AI) and Emerging Technologies (ET) and bring those innovations to impact to enhance our country’s economic prosperity and national security and to solve world problems.” Along with this engagement effort, USPTO patent eligibility guidance has continued to assist patent applicants in drafting patent-eligible claims protecting AI and ML inventions.Finally, global patent offices and courts continue to align behind the conclusion that—while patenting AI technologies is critically important—AI systems themselves cannot be named as inventors under existing patent systems. In the U.S., the Federal Circuit held in August that an AI system does not constitute an “individual” under the Leahy-Smith America Invents Act (AIA) and therefore cannot be listed as an inventor on a patent. See Thaler v. Vidal, 43 F.4th 1207 (Fed. Cir. 2022). Left for another day, however, was the more difficult question of “whether inventions made by human beings with the assistance of AI are eligible for patent protection.” Id at 1213.This post is a part of a series on trends in the artificial intelligence space for 2023, authored by MoFo lawyers.

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Jon Bockman is the head of the firm’s Technology Patent Practice. In this capacity, he leads the firm’s prominent group of patent practitioners with degrees in electrical engineering, mechanical engineering, computer science, computer engineering, chemical engineering, biomedical engineering and physics. 

Jonathan Bockman

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Of Counsel

Josh Crawford's practice focuses on domestic patent prosecution, international patent portfolio management, patent infringement and validity determinations, inter partes review proceedings, and IP lit

Joshua A. Crawford

Joshua Crawford

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AI Trends for 2023 - AI Technology Leads Patent Filing Growth

AI Trends For 2022 - AI For Natural Language 

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The prevalence and power of AI technologies are rapidly expanding, both at the captivating cutting-edge of creative AI models like the DALL-E image generator and the ChatGPT chatbot, and in the increasing pervasiveness of household and industrial applications of AI systems like autonomous vehicles and intelligent virtual assistants.



AI Trends for 2023 - AI Technology Leads Patent Filing Growth

AI as applied to manufacturing will continue to trend upward, along with associated product liability concerns. Manufacturers will continue to seek out and implement solutions that integrate tools that use AI (including machine learning) to automate the manufacturing floor. Vendors of these tools may seek to require human oversight of their implementation, as well as engagement by the manufacturer in decision-making relating to use of such tools. As these tools are deployed, expect to see increasing attention focused on the potential safety and product liability issues that could arise from such automation, both in terms of safety of the manufacturing plant itself and the products manufactured in the plant.This post is a part of a series on trends in the artificial intelligence space for 2023, authored by MoFo lawyers.

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Stephanie assists companies with technology and life sciences transactions, representing both private and public companies, from emerging growth through the Fortune 50. In particular, Stephanie focuses on helping companies that leverage data through technology in structuring their business and commercial transactions.

Stephanie Sharron

Stephanie Sharron is partner in the Palo Alto office and a member of the firm’s Technology Transactions Group. Clients turn to Ms. Sharron for advice on how to leverage data through technology and the related issues that apply to their business models in light of the rapid changes in business, technology and law.

Stephanie Lynn Sharron

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AI Trends for 2023 - AI in Automated Manufacturing

AI Trends For 2022 - Augmented Reality and Digital Twin Technology

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AI as applied to manufacturing will continue to trend upward, along with associated product liability concerns. Manufacturers will continue to seek out and implement solutions that integrate tools that use AI (including machine learning) to automate the manufacturing floor. 

AI Trends for 2023 - AI in Automated Manufacturing

Improvements in AI’s image modeling and natural language processing capabilities have opened up new opportunities for content creators in business and artistic fields. Specialized AI models are being used by marketing teams to generate content like blogs, social media posts, emails, advertisements, and other consumer-facing content. AI tools are also being used to process individualized customer data to create personalized content that is more likely to be read and shared by a target audience. Creative professionals are also using AI as a tool to create visual and literary art, such as writing poetry and generating artworks with specified subjects and styles. While human involvement is still needed for many aspects of AI-based content creation, such as inputting prompts and editing AI-generated works, more intelligent models are continuing to chip away at the need for human involvement.As the use of generative AI becomes more widespread, more and more fields will begin to employ AI tools for content creation. With even smarter and more efficient AI models on the horizon, we can expect these trends to continue in 2023.﻿This post is a part of a series on trends in the artificial intelligence space for 2023, authored by MoFo lawyers.

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Anna Yuan’s practice focuses on patent prosecution, IP due diligence, post-grant proceedings, and IP litigation support. 

Anna Yuan

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AI Trends for 2023 ‒ Generative AI Continues to Make Content Creation Easier

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Improvements in AI’s image modeling and natural language processing capabilities have opened up new opportunities for content creators in business and artistic fields. Specialized AI models are being used by marketing teams to generate content like blogs, social media posts, emails, advertisements, and other consumer-facing content. 

AI Trends for 2023 ‒ Generative AI Continues to Make Content Creation Easier

From improving genomic sequencing to discovering new drug formulations, AI plays a key role in advancing biomedical research. In particular, the field of bioinformatics, which involves the collection and interpretation of biological data using software tools, is undergoing a period of rapid transformation and growth due to innovative uses of AI. Recent AI-related developments in bioinformatics include the determination of 3D shapes of proteins, the identification of disease-specific biomarkers, and the modification of existing drugs to create COVID-19 therapeutics. This upward trend will continue throughout 2023 and beyond as AI is increasingly adopted by major biomedical research groups and biotech companies. This post is a part of a series on trends in the artificial intelligence space for 2023, authored by MoFo lawyers.

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AI Trends for 2023 - Bioinformatics

The Collision of AI’s Machine Learning and Manipulation: Deepfake Litigation Risks to Companies from a Product Liability, Privacy, and Cyber Standpoint

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From improving genomic sequencing to discovering new drug formulations, AI plays a key role in advancing biomedical research. In particular, the field of bioinformatics, which involves the collection and interpretation of biological data using software tools, is undergoing a period of rapid transformation and growth due to innovative uses of AI. 

AI Trends for 2023 - Bioinformatics

The EU is ramping up strict and tort product liability for faulty AI and software. The current revision of the Product Liability Directive 85/374/EEC includes AI, software, and even digital services in the IoT space in the scope of “products” that fall under strict product liability. The revision expands the scope of potentially liable parties to include certain fulfillment service providers and online marketplaces. The revised Product Liability Directive will allow consumers to seek compensation from non-EU manufacturers’ representatives. Alarmingly, the draft removes the liability cap for strict liability that currently applies. The revision includes some procedural changes: It introduces a form of discovery, whereby liable companies will be required to disclose evidence that a claimant will need to prove their case in court. Furthermore, there is a shift in the burden of proof where the claimant may, due to high technical and scientific complexity, only be required to demonstrate a likelihood that the damage was caused by the product. The parallel draft of an AI Liability Directive aims at applying the same standards (in particular the shift in the burden of proof) to product liability under national tort laws.This post is a part of a series on trends in the artificial intelligence space for 2023, authored by MoFo lawyers.

DocuSign, Inc

enercity AG

SoftBank Vision Fund

TDK and its subsidiary EPCOS

Tele Columbus

United Internet/1&1

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Kristina has more than 20 years of experience advising clients across many industries, including the software, internet, mobility, media, and consumer electronics industries, with a particular focus o

Kristina Ehle

Kristina Ehle has more than 20 years of experience advising clients across many industries, including the software, internet, mobility, media, and consumer electronics industries, with a particular focus on technology-driven and IP-heavy transactions.

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Counsel

Stephan is counsel at Morrison Foerster’s German office in Berlin. He focuses on advising major German and international clients with regard to drafting and negotiating complex technology-related agreements and on matters concerning cloud computing, software, e/m-commerce, digital media, intellectual property rights, consumer rights, electronic communication, big data and cyber security requirements.

Stephan Kreß

Stephan is counsel at Morrison Foerster’s German office in Berlin. As a member of the technology transactions group, he focuses on advising major German and international clients with regard to drafting and negotiating complex technology-related agreements and on matters concerning cloud computing, software, e/m-commerce, digital media, intellectual property rights, consumer rights, electronic communication, big data and cyber security requirements.

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AI Trends for 2023 - Increasing Product Liability for AI and Software in the EU

In the Public Eye: USPTO Issues Report on AI

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The EU is ramping up strict and tort product liability for faulty AI and software. The current revision of the Product Liability Directive 85/374/EEC includes AI, software, and even digital services in the IoT space in the scope of “products” that fall under strict product liability. The revision expands the scope of potentially liable parties to include certain fulfillment service providers and online marketplaces. The revised Product Liability Directive will allow consumers to seek compensation from non-EU manufacturers’ representatives

AI Trends for 2023 - Increasing Product Liability for AI and Software in the EU

While the AI industry has continued to attract venture capital and produce exits in 2022, headwinds in the venture capital and broader capital markets have, as compared to 2021, resulted in a decrease in the number of venture capital financings and exits, as well as a decrease in the total amount raised by AI companies in such financings and achieved by AI companies in such exits. According to PitchBook, AI companies have raised only $59.3 billion year-to-date through Q3 2022 across 4,554 financings, representing a 13.1% decrease year over year, although the industry appears to be poised to exceed the total deal value and deal count numbers set in 2020 ($65 billion raised across 5,543 financing transactions). By contrast, in 2021, AI companies raised $118.9 billion across 7,078 financings.CBInsights reports similar trends on the financing side of the marketplace, with only $8.3 billion invested in AI companies in Q3 2022, the lowest quarterly amount raised since Q3 2020 and a 31% drop from Q2 2022 (mirroring a general trend in the venture industry), including a 39% quarter-over-quarter drop in mega-round funding and a 59% drop in Silicon Valley AI funding.With respect to exits (buyouts, acquisitions and public offerings), PitchBook reports that, in contrast to exits in 2021 which totaled nearly $250 billion, AI company exits through Q3 2022 total less than $50 billion, with only $1.9 billion in disclosed value in Q3 2022, down from $15 billion in Q2 2022. Increased costs in capital across the marketplace, as well as significant challenges in the IPO marketplace, have contributed to making both financings and exits more challenging for AI companies and technology companies in general, a trend that is expected to continue through the remainder of Q4 2022 and into 2023. This post is a part of a series on trends in the artificial intelligence space for 2023, authored by MoFo lawyers.