Will patentability be canceled by the mode of invention?

by Dennis Crouch

Oral arguments in the AI-inventorship case of Thaler vs. Vidal are set for June 6, 2022. Professor Ryan Abbott is set to litigate on behalf of patent owner (and AI creator) Stephen Thaler. Assistant U.S. Attorney Dennis Barghaan will argue on behalf of the USPTO.

Thaler has developed an AI he calls DABUS. DABUS apparently created two inventions: a “neural flame” and a “fractal container”. But, Thaler refused to name himself as the inventor. Rather, he says that DABUS invented it. But, the PTO refused to issue the patent without a listed human inventor. After being rejected by the PTO, Thaler filed a civil suit in the ED Va. This court dismissed the case, finding that a non-human device cannot be considered an “inventor”. Abbott and Barghaan also argued the case below.

The question on appeal:

As Thaler said, “if an AI-generated invention is patentable.”

As the government has stated: if “an artificial intelligence device consisting solely of source code can[] be considered an “inventor” under the Patent Act. »

Many people might resist Thaler’s suggestion that the AI ​​is the one who invented, but at this point in the litigation dismissal, that fact is assumed to be procedurally true. Both sides in this case have good arguments, but we should probably be confused if the result is that “two otherwise patentable inventions cannot enjoy patent protection” despite the legal statement that “[p]the attemptability should not be negated by the way the invention was made. 35 USC 103.

The Federal Circuit asked to decide whether US patent law excludes non-human inventors