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Can you patent something created with the help of AI?

On Behalf of | Feb 21, 2024 | Patent Law

Artificial intelligence (AI) is playing a greater role in many aspects of our lives. It’s also been an immense help to those doing scientific research and creating new products and processes.

So what does that mean for the ability to patent something that’s been created with the help of AI? While the federal government is notoriously slow in keeping up with new technology, last year, President Biden gave the U.S. Patent and Trademark Office (USPTO) until the end of this month to provide official guidance on this question.

What is the USPTO’s new guidance?

According to this newly published official guidance, as long as one or more people made a “significant contribution” to the invention, they can be named on a patent as the inventor(s). A federal appeals court has ruled that an AI system can’t be named as an inventor on a patent in a case where one was denied.

Just what “significant contribution” means will likely still be the subject of dispute as people seek patents. The USPTO gave some examples of cases where AI is used and whether humans made a “significant contribution” to the invention.

For example, if someone asked an AI chatbot to design a crucial part of an invention, they likely wouldn’t be able to patent it. The USPTO explains, “A natural person who only presents a problem to an AI system may not be a proper inventor” – at least of that invention.

If, 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,” they might be eligible to patent it.

Disclosing the use of AI

All of this brings up the question of whether someone has to disclose their use of AI when applying for a patent. Currently, the USPTO has no such requirement.

There’s a concern that this opens the door to “patent trolls” being able to apply for patents they don’t intend to use to create anything but only as grounds for patent lawsuits. One consumer advocacy group official says, “The economy already is harmed by a surplus of low-quality patents which leads to unproductive litigation, rent-seeking and transfers of wealth from productive businesses to those who are experts at navigating the legal system.”

While AI can no doubt be a useful tool for researchers and inventors, it also brings added complexity to the patent process. This is yet another reason why it’s crucial to have experienced legal guidance when seeking a patent.