“Whoever Invents or Discovers”: Artificial Intelligence and the Case for Joint Inventorship

Artificial intelligence (AI) is increasingly important in the modern world. Given its fidelity to—and, in some cases, its surpassing of—human performance, people rely upon AI in myriad settings. The AI era is already here, and the technological advancements to come are even more mind-boggling. The United States Patent and Trademark Office (USPTO) has seen a significant increase in patent applications claiming inventions pertaining to AI, but how does the patent system handle when AI invents? The U.S. Court of Appeals for the Federal Circuit recently held in Thaler v. Vidal that the Patent Act requires inventors listed on patent applications to be natural persons; that is, human beings. The court concluded that the statutory text unambiguously and directly answered the AI inventorship question: “[O]nly a natural person can be an inventor, so AI cannot be.” Though the court correctly interpreted the statutory text, the current legislative framework is insufficient to handle the rise of AI inventorship. Maintaining the status quo by limiting inventorship to humans creates an ethical dilemma for patentees, deprives the public of innovation, and defeats the purposes and policies of patent law. Though previous scholars have proposed granting AI plenary inventorship, they have failed to address important issues that arise under such an expansive legislative overhaul including patent ownership and the inventor’s declaration requirements. In this Note, I propose a more limited form of AI inventorship that solves these issues: Congress should broaden the Patent Act, amending it to allow artificial intelligence to be a joint inventor. I analyze how such an amendment allowing joint AI inventorship is constitutional and within Congress’s authority pursuant to Article I, Section 8, Clause 8 of the United States Constitution. I also argue that my unique hybrid approach solves the current ethical dilemma and furthers the purposes of patent law by promoting “the Progress of Science and useful Arts.”