VIRGINIA - To incentivize, protect, and encourage investment in innovations made possible through the use of artificial intelligence (AI), and to provide the clarity to the public and United States Patent and Trademark Office (USPTO) employees on the patentability of AI-assisted inventions, the USPTO has published guidance in the Federal Register. This guidance delivers on the USPTO’s obligations under the Executive Order on the Safe, Secure, and Trustworthy Development and Use of Artificial Intelligence, according to the official website of USPTO.
“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, which goes into effect February 13, 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 our examiners and applicants in their understanding of this guidance, examples of hypothetical situations of how the guidance would apply are available on our AI-related resources webpage.
To learn more about what the guidance is and is not, and to get your questions answered and provide feedback, we invite you to attend our upcoming public webinar on March 5 from 1-2 p.m. ET. We also invite you to read the Director’s Blog on AI and inventorship guidance: Incentivizing human ingenuity and investment in AI-assisted inventions.
The full text of the inventorship guidance for AI-assisted inventions and the corresponding examples are available on our AI-related resources webpage. The USPTO will accept public comments on the inventorship guidance and the examples until May 13, 2024. Please see the Federal Register Notice for instructions on submitting comments.