AI Inventorship: Recognizing the True Inventors Requires Change

(Excerpt) The Analytical Engine was conceived almost two hundred years ago—a general-purpose programmable computing engine which had essential features resembling a modern-day computer. While truly a marvel for its time, the Analytical Engine lacked the ability to perform functions on its own, as it was only able to do tasks for which it was programmed. Today, artificial intelligence (“AI”) has become increasingly popular and powerful and is projected to keep growing. AI demonstrated its autonomous strength to the whole world on national TV when IBM’s Watson competed on Jeopardy!, beating the game show’s legends Ken Jennings and Brad Rutter. Since then, AI has become so powerfully complex that it is capable of conceiving potentially patentable inventions in addition to serving many other functions across various industries. Despite AI’s impressive accomplishments, on August 5, 2022, the Court of Appeals for the Federal Circuit (the “CAFC”) held in Thaler v. Vidal that AI may not be the sole inventor on a patent application and that only a natural person is eligible to receive a patent for an invention under the Patent Act. The CAFC took a statutory interpretation approach, holding that the Act unambiguously narrows the category of inventors to include only human beings. This Note argues that Congress should use the powers granted to it by the Intellectual Property Clause of the Constitution to update the Patent Act in a way that allows AI to be designated as inventors on patent applications for which the AI is the sole inventor of the claimed invention. While the CAFC in Thaler correctly interpreted the current law under the Patent Act, the goals set forth by the Constitution of promoting science and the useful arts are hindered by this outdated state of the law. This Note will specifically argue for changes in (1) the understanding of the “conception” requirement for an invention, (2) the statutory definition of “inventor,” (3) linguistic choices in the Patent Act, and (4) 35 U.S.C. § 115 requirements. This Note is divided into three parts. Part I provides background on the law and AI. It gives insight on patent law and artificial intelligence in the United States and how it has developed over time. Part II will discuss, as a recent and important case study, Dr. Stephen Thaler’s pursuit of inventorship for his AI, the CAFC’s decision in Thaler v. Vidal, and the decision’s implications for the future of AI inventorship rights. Part III will explain why AI should be designated as inventors on patent applications and what must change to allow this to be accomplished. It also considers possible counterarguments to this proposal. A conclusion follows.