Artificial intelligence (AI) as a patent inventor?

My 10 year old son is working on a project for school where he has to invent a new project.   Instead of using his brain like we did in the old days, he went straight to chatGPT and asked the AI tool to generate a list of new inventions.  He then found one he liked and asked chatGPT to provide instructions on how to build it.   As a father I was half impressed with his cleverness but half scared for the future of this generation.   As a patent professional, I started to wonder if my son was the actual “inventor” that we would list on a new patent or would I list the AI tool (chatGPT in this case).

Who is an “inventor”?

Under US patent law, only the person or persons who generated the new patentable idea can be listed as an inventor on a patent.  This is an important thing to get right because your entire patent can be invalidated or canceled if you don’t have the proper inventors listed on a patent.   I have seen many cases that start off with 5+ people listed as inventors but only after we dive into the details can we find who the true idea generators our and only those people can legally be listed on the patent.   In one case I was working with a professor and a student where the professor had the original idea and the student spend 2 years working on the project and gathering date.  When it came time to file the patent only the professor could legally be listed as the inventor and not the student.   

Can AI tools be an inventor? 

Under current U.S. patent laws, only natural persons can be named as inventors. This was reinforced by the recent Federal Circuit’s decision in Thaler v. Vidal, which concluded that an inventor must be a human being. However, this decision does not preclude patenting inventions where AI played a significant role, as long as a natural person contributed to the conception of the invention.

Impact on AI-Assisted Inventions

  • Inventorship Analysis:

    • The determination of inventorship involves evaluating whether a natural person made a significant contribution to the conception of the invention.
    • Building a prototype or working on an invention created by another person is insufficient for inventorship.
  • Guiding Principles:

    • The US Patent and Trademark Office (USPTO )provided principles to help determine significant contributions in AI-assisted inventions. Key points include:
      • Use of AI by a natural person doesn’t negate their inventorship.
      • Merely recognizing a problem or reducing an invention to practice is not enough to be an inventor.
      • Designing, building, or training an AI system to solve a specific problem can count as significant contribution.

Ongoing Efforts and Public Participation

The USPTO continues to seek public comments on its guidance and may issue further updates based on stakeholder feedback and judicial decisions. The process of refining inventorship guidelines for AI-assisted inventions is ongoing, reflecting the evolving nature of AI technology.

In conclusion, while AI systems cannot be inventors, their use in creating inventions is supported under current patent laws, provided there is significant human contribution. 

The USPTO has set up their own webpage to provide further updates about AI inventions here:

https://www.uspto.gov/initiatives/artificial-intelligence/artificial-intelligence-resources