Feds Say AI Can’t Be Inventor, Though AI-Assisted Inventions Are Patentable

Recent advancements in the artificial intelligence (AI) field have significantly increased the scope of how the technology can be applied. With generative AI tools such as ChatGPT already helping users generate significant amounts of data every day, the technology has the potential to completely revolutionize many industries.

Experts in several fields could use AI to optimize their workflows and analyze mountains of data to reach new and potentially groundbreaking conclusions. However, the U.S. Patent and Trademark Office (USPTO) has ruled that artificial intelligence itself cannot be classified as an inventor. The USPTO has issued guidance on inventorship and patentability in the wake of the ongoing AI revolution for inventions that are developed with the assistance of AI.

According to the recently issued guidance, inventions made with the assistance of AI are patent eligible if at least one human contributor made a major contribution to their conception. This means that while AI cannot be a sole inventor, it may be used in the creation of patent-eligible inventions.

Conception refers to the process of constructing an invention, testing it and validating its workability. An invention can only be patented if a human contributed to this part of the invention process significantly. Additionally, the USPTO outlined several principal guidelines that can be used to help determine when and whether a human should get classified as an inventor when they use AI tools for assistance.

The federal agency also offered two examples to help guide inventors, practitioners and examiners in determining whether their AI-assisted inventions are eligible for patents.

This announcement comes two years after the Federal Circuit Court ruled that only a human inventor could be named as the valid inventor of an invention, not an AI system. The ruling established that U.S. law does not provide protections for AI-made inventions. However, the court noted that its ruling did not account for the more complex issue of inventions that were developed with the assistance of artificial intelligence.

Shortly after the ruling, President Joe Biden’s administration passed an ai executive order directing the USPTO director to offer an opinion on the issue of inventions made with the assistance of AI. As per the executive order, the USPTO director is tasked with guiding USPTO parent applicants and examiners on the use of AI in inventorship. The USPTO issued this guidance in mid-February and has now opened a 90-day comment period for the public to comment.

Enterprises that are on the cutting-edge of developing AI solutions, such as Microsoft Corp. (NASDAQ: MSFT), are likely to have valuable input to share with the USPTO regarding the role that AI can play in coming up with inventions, and how such inventions can be legally protected.

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