In 2020, 80,000 utility patent applications involving AI were filed with the United States Patent and Trademark Office. While it is clear that AI will be an essential part of patenting for the foreseeable future, what remains unclear for many innovators is how to categorize AI’s contributions to an invention’s development. Good patenting strategy should take into account where the law currently stands on nonhuman inventorship and the various ways AI can be used by inventors.

Panitch Schwarze attorneys Charles F. Wieland III and Sean M. Douglass authored an article in The Legal Intelligencer examining these issues. They note that most countries, including the U.S., do not allow an AI system to be named as an inventor. Therefore, patents should always name a human as the inventor or co-inventor. The legal strategy for claiming inventorship may vary. If a human used an AI tool to aid in the invention process, that person could reasonably claim sole inventorship. In situations where an AI program serves as the primary creator, patent applicants may be able to claim inventorship if they trained or created the program.

Patent law regarding AI-driven inventions is largely uncharted territory, and the coming years will undoubtedly provide more clarity around these issues. In the meantime, Wieland and Douglass recommend listing a human inventor or group of inventors and identifying any contributions from AI in the detailed description of a patent application.

Read the full article here: Patenting Strategies When AI Is an Inventor (Subscription is required.)