AI and patents: What qualifies as a creator

Can artificial intelligence-assisted inventions be eligible for patent protection? This is the central question many courts, agencies and human inventors are trying to resolve.

At the intersection of technological advancement and intellectual property law, AI-assisted inventions, including generative AI, challenge the traditional concept of who gets credit for an invention and to what extent they can protect their innovations.

To resolve this, the intent and history of patent protection needs to be understood and how those precedents might apply in light of developing technology should be considered.

The U.S. patent system is rooted in Article 1, Section 8, Clause 8 of the Constitution, which empowers Congress "to promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries." The governing law for patents is codified in Title 35 of the U.S. Code and is overseen by the federal agency, the U.S. Patent and Trademark Office. The USPTO is responsible for granting patents as well as examining, issuing and developing regulations relating to the patent process.

The USPTO grants three types of patents: utility patents for new and useful processes, machines, manufactures, or compositions of matter; design patents for new, original and ornamental designs for manufactured articles; and plant patents for new varieties of asexually reproducing plants. Utility and plant patents generally have a term of 20 years from the filing date, while design patents last 15 years from the grant date.

Patents are more difficult to obtain than copyright or trademarks because the system is built to reward genuinely novel and nonobvious inventions, setting a high bar for innovation rather than rewarding minor changes to existing technology.

There are a few basic principles regarding patent eligibility and inventorship in the U.S.: