Members of the Seattle Times Union held a lunchtime picket outside the newspaper’s offices Wednesday, calling on the company to guarantee that AI won’t replace any newsroom jobs.

The picket comes six months into contract negotiations that the union says are currently stalled over wages and AI use. While the company has agreed to prohibit the use of AI to interview people or write articles, it has declined to extend protections to other newsroom roles, such as photojournalists, copy editors and social media producers, according to the union.

“Management has admitted at the bargaining table that it could use AI to replace jobs,” journalist Alexandra Yoon-Hendricks said in a speech. “All of our members in the newsroom — reporters, photographers, copy editors, page designers, graphic artists, digital producers and more — deserve job security against machines.”

From the start of bargaining, the union says it has called for a contract in which “interviewing sources, writing stories, and all other journalistic and production related functions will be done by humans.” Management has only accepted the interviewing and writing clauses, excluding roles such as copy editors, graphic artists and photojournalists, according to the union.

That worries reporters like Manuel Villa, a data journalist at the Times, who cited the example of copy editors. “There is nothing to say that they wouldn’t be completely replaced,” Villa said. “I trust in them to make my pieces better. I am not sure I trust an AI agent to do that.” 

The Seattle Times Union is part of the Pacific Northwest Newspaper Guild, which won a contract this summer barring McClatchy from using AI to replace staff, decrease pay or reduce working hours at five newspapers in Washington and Idaho. McClatchy laid off 17 journalists at those papers this month as part of nationwide cuts.

Michele Matassa Flores, Seattle Times executive editor, addressed the paper’s use of AI in a column published Sunday. “The Seattle Times does not publish news stories produced by artificial intelligence. Full stop,” she wrote.

At the same time, Matassa Flores wrote, there are “ways artificial intelligence can help us do our work.” The weekly News Quiz and an audio player that reads stories aloud are the paper’s only reader-facing AI products, she wrote. 

Behind the scenes, she wrote, the newsroom occasionally uses AI to transcribe interviews and analyze large data sets, and it is piloting a program that scans government meeting videos for potential story ideas. Every use of AI in the newsroom needs approval from newsroom leadership, according to the column.

The column quoted Seattle Times Publisher Ryan Blethen telling a reader that “AI should be treated as a tool to aid and assist our journalism, not replace it.” The column did not mention the union or the contract talks.

Seattle Times Co. President and CEO Alan Fisco, in a statement provided to GeekWire, said the company will continue talks with the union over AI issues. 

“We understand the Guild’s concerns regarding the development of AI in the workplace, and especially its potential impact on journalism,” Fisco said in the statement. “To that end, we remain committed to negotiating with the Guild toward mutually acceptable contract language regarding AI use at The Seattle Times.”

The Seattle Times Co. and Newsday sued Microsoft and OpenAI on Sept. 4, alleging the companies used their journalism to train AI models without permission. 

The union said at the time that it supported the lawsuit, but that “if the Seattle Times Co. truly cares about the threat AI poses to journalism’s business model, it should protect the workers who produce the copyrighted material at the heart of this case.”

At the picket Wednesday, union members said they were hopeful that the company would come around, citing the broader trend of AI skepticism. A recent union petition, calling on the company to pledge not to replace any newsroom workers with AI, has received more than 1,600 signatures from the public.

“We’ve been doing a lot of public outreach, and we’ve been hearing sentiments from the community that they don’t want their local paper to be made with AI,” multiplatform desk editor Brandon Foster said. “It’s nice to know we’re on the same page as our readers.” 

The union says it’s awaiting the company’s response after Tuesday’s bargaining session. The next session is scheduled for Oct. 13.

Jeff Kohler was working as a software engineer in 2005 when he started spending his nights and weekends on a side project: a web conferencing system that could record and replay live sessions. He filed for a patent without the help of a patent attorney, stuffing two CDs full of C++ source code into the application to show his work.

The patent was issued in 2010, and years later, after Kohler had joined Microsoft, the Redmond company licensed his technology for its Teams video-conferencing platform.

When YouTube later added the ability for viewers to pause, rewind, and change the playback speed of live video, Kohler saw in the feature what he considered to be his own invention. Kohler, who lives in Bellevue, Wash., sued Google for patent infringement in U.S. District Court in Seattle in April 2023.

But rather than defending the feature’s originality, Google argued that Kohler’s patent was too abstract to be eligible for patent protection. The district court agreed and dismissed the case, and the U.S. Court of Appeals for the Federal Circuit affirmed that decision.

Both decisions cited Alice Corp. v. CLS Bank International, a 2014 U.S. Supreme Court ruling that raised the bar for software patent eligibility by holding that an inventor cannot patent an “abstract idea” implemented with generic technology.

Since then, Alice has been used to invalidate thousands of software patents, and the Supreme Court has repeatedly declined to revisit the standard. Now, Kohler is asking the Supreme Court to take up his case, not to overturn Alice, but to clarify how courts should apply it.

“The patent legal system has become hostile to inventors,” Kohler said. “Because of Alice, my case got stopped before it even started.”

How Alice changed patent law

When Alice was handed down, patent trolls were on the rise: shadowy entities that bought vague patents to sue tech companies on shaky claims of patent infringement. 

That changed under the 2014 ruling, which requires that a patent clear two hurdles: the idea cannot be “abstract,” and it must propose a sufficiently “inventive concept.” The standard has become “a crucial tool” for fighting patent trolls, in the words of the Electronic Frontier Foundation.

But critics say it’s ill-suited to software patents. Because software inventions often rely on pre-existing hardware to run the source code, courts tend to find many of these patents to be insufficiently inventive.

Jon McMichael, an IP litigation partner at Fenwick who has written about Kohler’s case, said this challenge is common in patents where inventors rely on general-purpose computers and off-the-shelf hardware to implement their ideas. 

“That’s where those patent holders run into more problems,” he said.

Experts say the courts’ application of Alice has broadened to invalidate the patents of real inventors in addition to those of patent trolls. Toshiko Takenaka, a University of Washington IP law professor who is working on an academic paper about Kohler’s case, said Alice’s ability to quickly defeat bad actors comes “at the expense of the best inventors.”

“Software patents are too frequently being invalidated without giving the owner the opportunity to defend it,” Takenaka said. “This inventor provided something ordinary computers could not do, right? So therefore, in my view, this is an eligible invention.”

Some judges have raised similar concerns, including Federal Circuit Chief Judge Kimberly Moore, who authored the opinion affirming the dismissal of Kohler’s case. In a 2020 concurrence in a separate case, Moore wrote that she and her fellow judges were “unanimous in our unprecedented plea for guidance” from the Supreme Court on how to interpret Alice, which she called a “patent-killing judicial exception of our own creation.”

A quest for legal clarity

After filing his patent, Kohler spent more than 15 years at Microsoft, where he helped launch HoloLens and rose to senior director of product management for the Surface line. He later served as a product leader at Meta for its Horizon platform.

Kohler says he’s hopeful the Supreme Court will agree to hear his case because his petition takes a new approach, asking the court to clarify how to apply the Alice test rather than disputing the test entirely. His new attorney, Kathryn Jean Miller, who does not have prior patent law experience, was admitted to practice before the Supreme Court bar for this case.

“It’s me and my lawyer against the world,” Kohler said. “I never thought I would be doing something like this.”

The Supreme Court has declined more than 89 petitions related to Alice, some of which had the Solicitor General’s endorsement. The justices will decide on Sept. 28 whether to hear Kohler’s case and likely announce their decision the following week.

Kohler is hoping that other inventors will file amicus briefs, which are due by Sept. 23, to illustrate to the court the need for clarification.

“There’s a broad coalition of people who would like some sanity brought back to patent law, from small inventors and startups to former judges,” Kohler said. “That’s what I’m trying to do with my petition.”