Originally published by Kirby B. Drake.
USPTO Finds AI Inventing Does Not Constitute Inventorship for Patenting Purposes
The Artificial intelligence (AI) is being used more and more in development of technology, but what if AI inventing already covered a technology that you want to patent? This is a question that the US Patent and Trademark Office (USPTO) recently decided in US Patent Application No. 16/524,530 (https://www.uspto.gov/sites/default/files/documents/16524350_22apr2020.pdf).
What Is AI and How Can It Invent?
Before diving into how the USPTO is handling AI inventing when it comes to patent inventorship, it may be helpful to understand what AI actually is. AI is the use of computer science programming to imitate human thought and action by analyzing data and surroundings, solving or anticipating problems and learning or self-teaching to adapt to a variety of tasks. AI generally includes neural networks, machine learning, and deep learning.
Chances are you are using AI every day, as it can include things like Siri, Alexa, and even Netflix, that uses advanced predictive technology to suggest shows based on your viewing preferences or rating. But AI inventing is being used in significant research and development (R&D) operations as well, including being used in medicine to diagnose cancer and other diseases with extreme accuracy through replication of human-like cognition and reasoning. So, when AI is contributing to the diagnosis of cancer, should AI be included as an inventor on a patent? The USPTO says no.
AI Inventing and Patent Inventors
The USPTO was asked to consider whether a machine named “DABUS” could be listed as an inventor on a patent application because it recognized the novelty of the invention to be patented. In its Decision, the USPTO found that the definition of “inventor” in the patent statutes does not cover machines; it only covers persons and individuals.
The USPTO also concluded that because the courts have concluded that a state cannot be an inventor, machines should not be identified as inventors because conception, the touchstone of inventorship, must be performed by a natural person. Therefore, AI inventing doesn’t constitute inventorship for patenting purposes. Additionally, the USPTO rejected policy considerations such as incentivizing innovation using AI systems, reducing improper naming of persons as inventors who do not qualify as inventors, and supporting the public notice function by informing the public of the actual inventors of an invention, finding that they do not overcome the language of the patent laws or court decisions.
Key Takeaways Regarding AI Inventing and Patents
As AI inventing becomes more prevalent in R&D as well as in daily life, some questions will likely eventually need to be addressed and answered as technology continues to evolve:
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will the courts disagree with the USPTO?
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will the patent laws change?
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will we one day see AI being listed alongside individuals as inventors on patent applications?
Perhaps AI will eventually give us the answer!
patents
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