From Bloomberg Law:
The amount of human involvement needed to secure a patent when artificial intelligence is used to create an invention remains up in the air after a Federal Circuit decision shutting down the possibility of solo AI inventorship.
Patent attorneys expect more litigation on the use of AI in inventions to follow the US Court of Appeals for the Federal Circuit’s ruling last week that artificial intelligence systems can’t be the sole inventors on patents. The three-judge panel noted that the decision was confined to the question of whether computer scientist Stephen Thaler’s creativity machine could be the only inventor listed on a patent application, not whether inventions “made with the assistance of AI” are eligible for patent protection, according to the precedential opinion.
The opinion left unresolved how some provisions of the Patent Act should be interpreted when AI is involved and what constitutes sufficient human contribution for the person to qualify as an inventor, attorneys said. As the US Patent and Trademark Office grants such patents, courts will start having to grapple with new legal challenges surrounding AI inventions across industries.
. . . .
Thaler’s loss last week marked his latest setback in his quest to convince jurisdictions around the world that his creativity machine called DABUS is the rightful inventor on two patent applications. The Federal Circuit sided with courts in Australia and Europe that found only humans can be inventors under existing statutes. Thaler said he plans to appeal the Federal Circuit’s decision to the US Supreme Court.
It would be up to Congress to change the Patent Act to allow for non-human inventors, but until then, there’s “no ambiguity,” Judge Leonard P. Stark wrote in the opinion.
More challenges to patents created with the help of AI will follow, said Susan Krumplitsch, a partner at DLA Piper, though they likely won’t center on whether the AI should be allowed to be the inventor, as Thaler argued. When inventions rely on machine learning and neural networks, it’s not clear how important the person was in the creation of the invention, she said.
“These issues haven’t been explored,” Krumplitsch said. “I would expect in the coming years, as these patents come up, and we see them in court, and they’re pulled apart, we’ll see more of a focus on who was doing what, and was the human contribution enough to be an inventor contribution.”
If the artificial intelligence system did all or most of the work, the humans involved in the inventions may not be able to take the oath required by the patent office that they are the rightful inventors, said Christopher S. Schultz, a partner at Burns & Levinson LLP in Boston.
Link to the rest at Bloomberg Law
As PG mentioned in earlier posts, it’s only a matter of time until the AI/author copyright question arises as well.