As Artificial Intelligence (AI) capabilities advance, the United States Patent and Trademark Office (USPTO) continues to grapple with a critical question: Can an AI be an inventor?
The USPTO published a notice on Regulations.gov titled “Request for Comments: Artificial Intelligence and Inventorship” on February 14, 2023. However, this is not the USPTO’s first attempt to comprehend AI’s ever-expanding role in invention. In 2019, the USPTO collected public comments on AI inventions, which it addressed in a document titled “Public Views on Artificial Intelligence and Intellectual Property Policy.” Furthermore, in June 2022, the USPTO hosted an AI/ET Partnership conference, which included a panel discussion titled “Inventorship and the Advent of Machine-Generated Inventions.”
Below is a sample of the questions posed to the public. Comments will be accepted until May 15, 2023.
- How is AI, including machine learning, currently being used in the invention-creation process?
- How does the use of an AI system in the invention-creation process differ from the use of other technical tools?
- If an AI system contributes to an invention at the same level as a human who would be considered a joint inventor, is the invention patentable under current patent laws?
- What statutory changes, if any, should be considered as to U.S. inventorship law, and what consequences do you foresee for those statutory changes?
- Are there any laws or practices in other countries that effectively address inventorship for inventions with significant contributions from AI systems?
The notice also notes that the “Journal of the Patent and Trademark Office Society” will publish an issue on inventorship and AI-enabled innovation. The USPTO is seeking the opinions of experts from a range of subjects, including computer science, law, and economics, to submit to the publication.
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