Generative AI as an Inventor?

This summer, the U.S. Senate Judiciary Committee heard testimony supporting the case for generative artificial intelligence to qualify as an inventor for patent applications. Dr. Ryan Abbott from the Artificial Inventor Project provided testimony and discussed the incentives for allowing AI-generated inventions to qualify for patent protection. Dr. Abbott argued that companies who create generative AI programs should be legally entitled to patent rights for inventions created by those same AI programs. Thus far, the U.S. Federal Circuit and U.S Patent & Trademark Office (USPTO) have disagreed and refused to issue patents for technologies with non-human inventors.

Others have suggested a middle ground approach: allowing generative AI programs to be named as an inventor so long as the technology has a human co-inventor. This middle ground approach could encourage companies and inventors to further invest in AI. Patent eligibility could reassure investors that the innovations created by AI can be legally protected.

Even as patent eligibility evolves, it's important to understand the current legal landscape. The U.S. is a first to file country. For example, say Inventor A creates a new technology, but drags their feet in filing their patent application. Inventor B invents the same technology after Inventor A, but files their application with the USPTO first. Even though Inventor A created the technology first, an application filed by Inventor A would be rejected over the application filed by Inventor B. Thus, the burden is on inventors to file their applications quickly. AI-based technologies can be patent eligible and the USPTO issued over 18,000 patents for AI-related inventions in 2021. If your company has created a new AI-based system or tool, consider filing a patent application now before a competitor beats you to the patent office.