SAIL Foundation – is AI heading towards a standard-essential patent moment?

Earlier this month, several key AI players launched the Shared AI License (SAIL) Foundation - a collaborative patent pool granting members mutual licences over AI foundation model and enabling software IP [1]. Current members include giants in the space such as Anthropic, IBM, Meta and Microsoft.

Patent pools - where potential competitors agree to cross-license or “pool” their patents relating to a particular technology - are nothing new, and have historically emerged where a core technology underpins an entire industry. These types of agreements trace their history back to sewing machine technology in the mid-19^th century, and more modern examples include video compression standards such as MPEG, and 3G/4G standards in telecommunications. 

The logic is likely the same with SAIL: When foundational AI model technology is developed and deployed across competitors, the IP landscape may begin to resemble a standard-essential patent (SEP) environment, even without a formal standards body. SAIL may be, in effect, the industry's own answer to that problem.

The question of whether “essential” or “foundational” patents will emerge in the AI space has been widely discussed, and given the influence of the current members, this development is worth watching closely. SAIL suggests the AI industry could be maturing past the "land grab" phase of patent filing, and beginning to grapple with the same licensing complexity that defined mobile telecoms in the 2000s. Questions around FRAND-like obligations (fair, reasonable, and non-discriminatory licensing), pool governance, and the boundary between pooled and proprietary IP are likely to follow.

The analogy is not perfect - the scope of SAIL is deliberately narrow, covering foundation model technology only (and specifically excluding application and hardware IP). Nevertheless, it will be interesting to see if other big AI players join the foundation, and how the already substantial pool of IP (reportedly 20,000+ patents owned by members) evolves and is used going forward. 

Navigating the IP landscape for AI inventions can be complex. Our experienced patent attorneys are well equipped to guide you through the nuances of this evolving area. For strategic advice or filing support, please feel free to contact us directly.

[1] - https://www.sailfoundation.com/about current members so far include Anthropic, IBM, Meta, Microsoft, Genentech, Block, Figma, eBay and TD Bank Group.