Imagine That IP Law Blog

In 2022, when asked whether an artificial intelligence could be an inventor on a patent, the United States Court of Appeals for the Federal Circuit definitively answered “no.” Thaler v. Vidal, 43 F.4th 1207 (Fed. Cir. 2022). But does this mean that inventions made with AI systems are completely ineligible for patenting? In a new memo published Tuesday in the Federal Register, the United States Patent and Trademark Office (USPTO) also says “no.”  “Inventorship Guidance for AI-assisted Inventions,” 89 FR 10043 (USPTO, February 13, 2024).

In Thaler v. Vidal, the ... Read More ›

On May 2, 2023, the Writers Guild of America (WGA) went on strike, initiating yet another standoff in the entertainment industry. One of the primary issues in the WGA’s contract dispute with the Alliance of Motion Picture and Television Producers (AMPTP) is the use of artificial intelligence and creative machines such as GPT-4 in union projects, which the WGA sought to prevent. In an interview with Vice, John August, screenwriter of Charlie’s Angels and Big Fish, stated, “these large language models are progressing at an incredible rate. AI-generated material isn't ... Read More ›

Newly developed artificial intelligence systems have been used to generate new inventions (e.g. Dr. Stephen Thaler’s “Device for the Autonomous Bootstrapping of Unified Sentience” or DABUS), works of authorship (e.g. Alice and Sparkle, created by Ammaar Reshi using the ChatGPT large language model), and works of art (e.g. Zarya of the Dawn, created by Kristina Kashtanova using the Midjourney image generator). The U.S. Patent and Trademark Office and the U.S. Copyright Office have each held that artificial intelligence systems cannot qualify as inventors or authors for ... Read More ›

In part one of this article, I discussed Dr. Stephen Thaler and his system DABUS, short for “Device for the Autonomous Bootstrapping of Unified Sentience,” and distinctions between this and other artificial intelligence systems. Thaler believes the system is sentient and has the ability to dream and invent.

So what if he is right? The inventorship issue may be moot in a practical sense, as an applicant could simply use their own name on a declaration of inventorship, though Dr. Thaler contends this would be fraud. “I think the way that our lawmakers and courts are steering things ... Read More ›

Just as the U.S. Patent Office has declined to consider patent applications naming an artificial intelligence as an inventor, the U.S. Copyright Office has declared that works authored by artificial intelligent artists or authors are ineligible for copyright protection. In a new notice published in the Federal Register, “Copyright Registration Guidance: Works Containing Material Generated by Artificial Intelligence,” 88 FR 16190 (March 16, 2023), the Copyright Office reiterated that “copyright can protect only material that is the product of human creativity.” ... Read More ›

Part 1 in a 2 Part Series

In the age of creative machines and artificial intelligence, intellectual property law is facing new challenges and questions. As we continue to push the boundaries of what machines can create, the questions of ownership and authorship become more and more complex. An AI that can produce patentable inventions could also be used to pre-empt competitors’ use of the patent system by flooding the space with artificially generated prior art. Courts have yet to address this possibility. Judging by Dr. Stephen Thaler’s description of his DABUS system, the time ... Read More ›

Before examining whether a particular invention is patentable over the prior art, there’s an even more fundamental question: who is the inventor? The U.S. Constitution gives Congress the power to grant exclusive patent rights to inventors, but does not define who or what qualifies as an inventor. Previously, this has been a relatively straightforward issue, with the Federal Circuit noting in Univ. of Utah v. Max-Planck-Gesellschaft zur Forderung der Wissenschaften e.V, 734 F.3d 1315, 1323 (Fed. Circ. 2013), that “inventors must be natural persons and cannot be corporations ... Read More ›