The U.S. Patent and Trademark Office issued new guidelines about when inventions created with the assistance of artificial intelligence can be patented. USPTO Director John Squires said in a notice set to be published Friday, that the office considers generative AI systems to be “analogous to laboratory equipment, computer software, research databases, or any other tool that assists in the inventive process.”
“They may provide services and generate ideas, but they remain tools used by the human inventor who conceived the claimed invention,” the office said. “When one natural person is involved in creating an invention with the assistance of AI, the inquiry is whether that person conceived the invention under the traditional conception standard.”
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The office reiterated that AI itself cannot be considered an inventor under U.S. patent law. It rejected the approach taken under former president Joe Biden’s administration for deciding when AI-assisted inventions are patentable, which relied on a standard normally used to determine when multiple people can qualify as joint inventors.
“The same legal standard for determining inventorship applies to all inventions, regardless of whether AI systems were used in the inventive process,” the office said on Wednesday. “There is no separate or modified standard for AI-assisted inventions. U.S. courts have determined that AI systems cannot receive patents for AI-generated inventions, but have not yet considered when a person can receive patents for inventions conceived with the help of AI.
This guidance comes after Biden’s Executive Order on AI, issued in October 2023, told federal agencies to clarify how intellectual property law would apply to AI. The new guidance supersedes previous guidelines published in February 2024.
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Some other countries are also taking a hardline approach. In December 2023, the UK Supreme Court rejected a bid by computer scientist Stephen Thaler to patent an idea for a food-and-drink container using his AI system DABUS as the inventor. Thaler has also made failed attempts to get his AI registered as an inventor in the EU.
However, some legal experts believe that co-crediting AIs as inventors is logical and necessary. On LinkedIn, Professor Mark Lemley from Stanford Law School accused the USPTO of “assuming that ignoring AI conception somehow takes care of the problem” when it does not.
“In practice, I suspect this means applicants will lie about who made AI-generated inventions, the PTO will let them, and those patents will be in trouble if and when they are enforced in court,” Lemley said.