In a law review article published in late February in the Santa Clara High Technology Law Journal, I propose that AI inventions should be patentable under a broadened view of conception, with inventorship attributed to the people who use AI tools as extensions of their mind. In the article, I provide four options for addressing AI inventions. The first is to deem them unpatentable on the grounds that patenting them would require listing a non-human inventor in violation of the Patent Act. As I explained in an August 2022 TechTank post, the Federal Circuit’s decision that month in Thaler v. Vidal made clear that the definition in the Patent Act of “inventor” requires that inventors be human. Therefore, under current patent law, naming AI systems as inventors isn’t possible. But that shouldn’t be the end of the story. After all, AI has enormous potential in relation to inventions, and U.S. patent policy should provide a mechanism to harness the power of AI to enhance innovation.
