The US Patent and Trademark Office (USPTO) maintains that artificial intelligence systems cannot be named inventors, but humans can use AI tools in the process of creating patented inventions and must disclose if they do.
The agency published its latest guidance following a series of “listening” tours to gather public feedback. It states that while AI systems and other “non-natural persons” can’t be listed as inventors in patent applications, “the use of an AI system by a natural person does not preclude a natural person from qualifying as an inventor.” People seeking patents must disclose if they used AI in the invention process, just as the USPTO asks all applicants to list all material information necessary to make a decision.
However, to be able to register a patent, the person using the AI must’ve contributed significantly to the invention’s conception. A person simply asking an AI system to create something and overseeing it, the report says, does not make them an inventor. The office says that a person who simply presents the problem to an AI system or “recognizes and appreciates” its output as a good invention can’t claim credit for that patent.
“However, a significant contribution could be shown by the way the person constructs the prompt in view of a specific problem to elicit a particular solution from the AI system,” the USPTO says.
The office also says that “maintaining ‘intellectual domination’ over an AI system does not, on its own, make a person an inventor” — so simply overseeing or owning an AI that creates things doesn’t mean you can file a patent for them.
In 2020, the USPTO ruled that only “natural humans” can apply for patents after it denied a petition from researcher Stephen Thaler. Thaler added the AI system he created, DABUS, as an inventor in a patent application. A US court upheld the patent office’s decision. A different federal court ruled that AI systems cannot be granted copyright, following a separate application by Thaler involving an AI-generated image.
The USPTO and the US Copyright Office undertook a series of public consultations to develop new guidelines on handling AI in patent and copyright petitions.
