AUthored by Tim O’Keeffe, Esq & Mia Bartolomei-Negron
Just imagine an Artificial Intelligence (“AI”) system aiding in the invention of a groundbreaking new product. Should AI be credited as the inventor? Is such an invention even patentable? These intriguing questions are what the United States Patent and Trademark Office (“USPTO”) explored in its series of Listening Sessions on AI and Inventorship.
In 2020 alone, the USPTO received more than 80,000 patent applications that involved AI in some way, which was 50% higher than in 2002. Today, AI is featured in 18% of all utility patent applications examined at the USPTO. It’s becoming abundantly clear that AI is not just a fleeting trend. At the Listening Sessions, most speakers acknowledged that AI’s role in the innovation process is here to stay and is set to grow even more significant.
During these sessions, USPTO staff paid particular attention to generative AI because of its capacity to spawn new inventions. AI, with its ability to autonomously and creatively generate novel, non-obvious, useful, and innovative processes and inventions, is increasingly stepping into the role of human inventors. This development suggests that inventors will require clear guidelines on how their patent applications will be assessed if they utilize AI in the invention process.
Currently, both USPTO regulations and the Manual of Patent Examining Procedure (MPEP) underscore the requirement that an inventor must be a natural person unless Congress stipulates otherwise. Yet, there’s a growing consensus that AI should and can play a more significant role in the innovation process. This view is reflected in the rising number of patent applications that incorporate AI.
While most speakers at the Listening Sessions generally agreed that all inventions, including those generated by AI, should be protectable under US patent laws, opinions varied on the protection specifics. For instance, Mr. John Villasenor, a professor at UCLA, opined that an invention should still be patentable if AI contributed, but the AI system should not be credited as the inventor. Instead, the honor should be attributed solely to the natural persons behind the AI. In Mr. Villasenor’s view, such a philosophy promotes a symbiotic relationship between humans and AI tools, positioning the AI as an extension of the human mind.
Although the USPTO has a long road ahead to establish clear guidelines for evaluating AI-collaborative patent applications, the Listening Sessions sent a clear signal of their readiness to grapple with necessary conversations about AI. These sessions underscore the importance of evolving tools and technologies in fostering novel, useful innovation.