Mahi Sall, Advisor, Fintech-Bank Partnerships, Payments and Financial Inclusivity
January 25th, 2023
Mahi Sall is the CEO & Founder of FinXpair, a Berlin-based strategic advisory boutique firm focu[...]
AI Inventorship is A Legal Dilemma in Patents
AI and Patent Law | Nov 14, 2023
Image courtesy of DALL-E3
The question of whether AI systems, like ChatGPT or DABUS, should be listed as inventors or joint inventors on patent applications is a subject of debate among legal experts and innovators.
The role of Artificial Intelligence (AI) in patent law and inventorship is a topic of increasing complexity and significance.
The Concept of "Conception" in Patent Law
Under U.S. patent law, an inventor is defined as an entity that contributes to the conception of at least one claim element of a patent claim. The crux of the debate lies in whether AI systems can "conceive" ideas or solutions that contribute to a patent claim. If AI can conceive, it might meet the criteria for being listed as an inventor.
See: AI Creations: Policy Options and a Pathway Forward
- The Case for AI as an Inventor: This viewpoint argues that if an AI system can conceive of an idea that becomes part of a patent claim, it should be recognized as an inventor. The U.S. Court of Appeals for the Federal Circuit's decision in August 2022 (Thaler v. Vidal) affirmed that U.S. Patent law requires at least one human inventor, but it left open the possibility of human-and-AI joint inventorship. This suggests that AI systems could be considered joint inventors if they make a significant qualitative contribution to a patent claim.
- The Case Against AI as an Inventor: The opposing view considers AI systems as tools, incapable of conception without human input. This perspective aligns with the Federal Circuit's implication that AI systems cannot be sole inventors. Here, AI is treated as a tool in the invention process, used by human inventors but not credited as co-inventors.
Recent Legal Developments
The Federal Circuit's decision in HIP, Inc. v. Hormel Foods Corp. in May 2023 emphasized that a putative inventor must make a contribution to the claimed invention that is "not insignificant in quality."
See: Patentability In Software – Everything You Need To Know
This ruling, while not directly related to AI, provides a framework for considering the quality of contributions in determining joint inventorship.
- Applying this to AI, scenarios arise where the AI system's contribution to a claim element is significant in quality, potentially warranting joint inventorship with a human.
- Conversely, if the AI's contribution is insignificant, or if the human's contribution alone is qualitatively significant, the current U.S. jurisprudence would support listing only the human as the inventor.
Takeaway
Where an AI system significantly contributes to a patent claim, considering it as a joint inventor might be prudent, although current laws do not explicitly support AI as a sole inventor.
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