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Can you patent something created by AI?

On Behalf of | Aug 23, 2023 | Trademark Law

The rapid advancement of artificial intelligence (AI) will probably change the entire world in ways that most people can’t even imagine. 

Already, there are significant debates around whether AI-generated creations can be granted the same legal protections as intellectual property (IP) created by humans – and a case from the past is proving to have significant implications in the present.

The famous “Monkey Selfie” case holds the key to how AI-generated IP is treated

The 2011 monkey selfie case, involving a macaque named Naruto who snapped a now-famous photo of itself using a photographer’s unattended camera, serves as a thought-provoking precedent. While the circumstances of the case differ from AI-generated inventions, it raises pertinent questions about the origin of creativity and ownership of such creations. 

In that instance, the photographer, David Slater, argued that he owned the copyright to the photo since he had set up the equipment, while animal rights activists (in the form of PETA) contended that Naruto should be considered the creator and hold the copyright.

Ultimately, the U.S. 9th Circuit Court of Appeals upheld a U.S. District Court ruling that the Copyright Act did not permit a non-human to be granted copyright protection.

How does this apply to AI-generated content?

Essentially, the same logic is now being used against AI-generated art, music, books and inventions. The U.S. Court of Appeals for the Federal Circuit has already upheld the decision of the U.S. Patent and Trademark Office (USPTO) to deny a patent on an invention that was generated by AI, saying that the Patent Act “unambiguously” classifies inventors as “natural persons.” 

The U.S. Supreme Court has declined to hear any further appeal, which means that it’s now pretty much up to Congress to address this issue and decide what rules do and do not govern AI-generated inventions (and the humans who may have developed or overseen the process).

Patent law may grow increasingly challenging to understand as AI becomes a bigger issue. It’s incredibly important to have attorney guidance in all patent application processes, now more than ever – so reach out for assistance.