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LLM Customization With A Path to Human Inventorship and Patent Rights
Organizations across all industries are adopting generative AI systems as critical components of their business strategy. These systems often take the form of hosted or on-premises pretrained large language models (LLMs), both proprietary and open source. Organizations acquiring access to pretrained LLMs from a small but growing list of providers can apply various customization techniques. Once customized, LLM usage by an organization can potentially result in an output that constitutes an invention like those on which thousands of U.S. patents are granted every year. As just some examples, a suitably customized LLM could generate a technique to determine a navigation plan consistent with an ODD associated with an autonomous vehicle, an algorithm to predict disease onset based on clinical and environmental factors, or computer code to detect malware by overcoming dynamic obfuscation attempts.
Typical license provisions vest ownership of intellectual property rights in such output in the organization as user of the LLM. A statutory predicate to the contractual outcome regarding ownership of patent rights is the requirement of a sufficient contribution by a natural person in the effort that yielded the output. The issues implicated by this requirement are one development among more to come as patent law and policy try to catch up to proliferating AI technology.
|Human Inventorship
Pursuant to the "Executive Order on the Safe, Secure, and Trustworthy Development and Use of Artificial Intelligence" (Oct. 30, 2023), the U.S. Patent Office recently provided guidance regarding inventorship requirements for AI-assisted inventions. While the U.S. Patent Office guidance by its own terms does not have the effect of law, it nonetheless sets forth current agency policy regarding interpretation of legal requirements governing inventorship. The U.S. Patent Office guidance relies on Federal Circuit reading of the patent statute to remind that conception as the "touchstone" of inventorship requires formation in the "mind of the inventor" of a definite, permanent idea of the complete, operative invention. Under the Pannu factors and exercise of some discretion, the U.S. Patent Office guidance qualifies a natural person as inventor through a "significant contribution" to conception. Without human inventorship so characterized, the U.S. Patent Office will refuse the invention — at least for now.
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