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The Intellectual Property StrategistFeaturesArtificial IntelligenceIntellectual PropertyPatent Licensing and Transactions

AI Can Facilitate Innovation, But It Can Also Become a Potent Patent Killer

By Michael K. Friedland
July 01, 2024

When is an inventor not an inventor? It's when the inventor isn't human. So, if a non-human inventor can't, in the eyes of patent law, be an inventor, what role can the non-human inventor have in the patent system? The answer is straightforward. Even though it can't create, it can destroy.

In Thaler v. Vidal, 43 F.4th 1207 (Fed. Cir. 2022), cert. denied, 143 S.Ct. 1783 (2023), the Federal Circuit addressed the patentability of an invention for a container for rapidly reheating food. Whether the invention was patentable, however, didn't turn on the nature of the invention. It turned on the nature of the inventor.

The container had been created by DABUS, an artificial intelligence program. Stephen Thaler, DABUS' owner, filed the patent application for the container and candidly identified DABUS as the inventor. The Patent Office rejected the application because DABUS is not human. The trial court affirmed the Patent Office's decision; the Federal Circuit agreed; and the Supreme Court denied the petition for certiorari. Thus, for now, the rule is clear: An AI cannot be a patent inventor.

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