Computer software engineers will attest that artificial intelligence (AI) platforms improve virtually every day. As consumers, we often interact with AI without even knowing about the interaction. For example, when you interact with a chatbot on a company’s website, the chatbot is likely an AI platform. In addition, Google employs AI to optimize and suggest search queries, as well as to learn and predict navigation directions based on traffic patterns. In short, AI surrounds us throughout our daily lives. AI’s increasing role in technology poses an interesting question – at some point, can artificial intelligence invent a device or method?

While we interact with AI every day, back-end programmers improve AI platforms to more efficiently learn and predict patterns across a variety of applications. At times, the machine learning techniques employed by AI applications can identify patterns so effectively that the AI begins to function like a human brain. Dr. Stephen Thaler developed such an AI platform, named DABUS. Unlike traditional AI platforms, DABUS began employing a sort of stream of consciousness to combine separate datasets into complex networks. As such, instead of simply optimizing an idea, DABUS achieves a conclusion by mapping its own path.

Can Artificial Intelligence Invent under US Patent Laws?

After reaching a particularly novel conclusion, DABUS filed a nonprovisional patent application. Since Dr. Thaler developed DABUS, he listed himself as the Applicant for the application. However, the USPTO issued a Notice requesting a correction to the inventorship for the application. Dr. Thaler explained that he felt uncomfortable being listed as the inventor on the application. After all, while he developed DABUS, DABUS alone performed the true conception of the invention. As such, DABUS raised an interesting question for the USPTO – can artificial intelligence “invent” the subject matter of a patent application?

On April 27, 2020, the USPTO answered that question with a resounding “No.” The relevant patent statutes define an “inventor” as an individual who invented the subject matter of an invention. Citing to Federal Circuit case law, the USPTO ruled that AI platforms are similar to corporations and universities, which cannot be listed as inventors. Specifically, the USPTO held that inventorship requires a mental act. A corporation, a university, or a machine cannot perform such a mental step. As such, AI cannot develop an invention, under current US patent laws.

Unfortunately for DABUS, the brain-like steps performed to achieve new innovation does not satisfy the USPTO’s current inventorship standards. We’ll have to see if Congress takes action to improve AI’s rights in an ever-changing world.