According to the U.S. Court of Appeals for the Federal Circuit’s August 5th ruling in Thaler v. Vidal, No. 2021-2347 (Fed. Cir. 2022), artificial intelligence (“AI”) cannot be named as an inventor on a U.S. patent application. In its opinion, the Federal Circuit considered whether an inventor of a U.S. patent can be anything other than a human being. The Federal Circuit considered the statutory language of the U.S. Patent Act, which includes the definition of an “inventor” but not for an “individual.” Looking to various sources, the Federal Circuit determined that under the U.S. Patent Act, inventors must be humans.
In 2019, Steven Thaler filed two separate patent applications with the U.S. Patent and Trademark Office (“PTO”) for inventions allegedly developed only by his AI system “DABUS.” When the PTO found the applications to be missing a valid inventor and thus incomplete, it asked Thaler to identify valid inventors. The case made its way up to the Federal Circuit after Thaler unsuccessfully tried to have his AI recognized as an inventor on the applications.
Whether AI can be an inventor is a question being faced around the world. Currently, under U.S., European, and Australian patent laws, AI cannot be an inventor.
Reed Smith’s client alert discussing the Thaler case is available here.