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February 22, 2024 | Tom Ballard

U.S. Patent and Trademark Office issues guidance on patenting AI-generated inventions

The USPTO is also hosting a public webinar from 1 to 2 p.m. EST on March 5 to review the guidance.

Is an artificial intelligence (AI)-generated invention patentable or not? As the old saying goes, that is the question, and the U.S. Patent and Trademark Office (USPTO) has issued some guidance on the matter in a recent announcement that also included publishing in the Federal Register.

The guidance was intended to incentivize, protect, and encourage investment in innovations made possible through the use of AI while also providing important clarity to the public and USPTO employees on the patentability of AI-assisted inventions. The guidance, which became effective February 13, delivers on the USPTO’s obligations under the Executive Order on the Safe, Secure, and Trustworthy Development and Use of Artificial Intelligence.

“The patent system was developed to incentivize and protect human ingenuity and the investments needed to translate that ingenuity into marketable products and solutions,” said Kathi Vidal, Under Secretary of Commerce for Intellectual Property and Director of the USPTO. “The patent system also incentivizes the sharing of ideas and solutions so that others may build on them. The guidance strikes a balance between awarding patent protection to promote human ingenuity and investment for AI-assisted inventions while not unnecessarily locking up innovation for future developments. The guidance does that by embracing the use of AI in innovation and focusing on the human contribution.”

The guidance makes clear that AI-assisted inventions are not categorically unpatentable. The guidance provides instructions to examiners and stakeholders on how to determine whether the human contribution to an innovation is significant enough to qualify for a patent when AI also contributed. It builds on the existing inventorship framework by providing instructions to examiners and applicants on determining the correct inventor(s) to be named in a patent or patent application for inventions created by humans with the assistance of one or more AI systems. It states that patent protection may be sought for inventions in which a human provided a significant contribution to the invention.

Additionally, in order to further assist USPTO examiners and applicants in their understanding of this guidance, examples of hypothetical situations of how the guidance would apply are available on the AI-related resources webpage.

To learn more about what the guidance is and is not and to get questions answered, the USPTO is hosting a public webinar from 1 to 2 p.m. EST on March 5.

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