Artificial intelligence (AI) is a field of technology that leverages computer science and data science to enable problem solving. AI programs can synthesize a variety of inputs to make decisions and solve problems. One application of AI decision-making recently considered by some scientists is the invention of new products and technologies. As a result, patent offices and courts all over the world must now consider whether AI can be a patent inventor.

Both the United States Patent and Trademark Office (USPTO) and U.S. federal courts have found that AI generated inventions are not patentable. This analysis begins with examination of the U.S. Constitution and modern patent law provisions. Article 1, Section 1, Clause 8 of the Constitution grants Congress the power “to promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries[.]” Today, U.S. patent law states that “[w]hoever invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent therefor,” and under modern U.S. patent law, “the term ‘inventor’ means the individual or, if a joint invention, the individuals collectively who invented or discovered the subject matter of the invention. Relying on this language, the USPTO found that a patent inventor must be a natural person and that the term inventor, as used in the patent statutes, does not include machines.

A U.S. district court then dismissed an appeal from the USPTO decision, further relying on the Federal Circuit’s holding in Univ. of Utah v. Max-Planck-Gesellschaft that inventors must be natural persons. The district court additionally suggested that whether machines should be enough to satisfy the accepted meanings of inventorship is a question best left for Congress. The decision is pending appeal at the Federal Circuit.

Like the U.S., both the United Kingdom and the European Patent Office (EPO) have rejected the idea that AI can be a patent inventor. The U.K. Patent Office found that an inventor must be a natural person or a human and not an AI machine. Both a U.K. High Court and, later, a U.K Court of Appeal upheld this decision. The EPO found that only natural persons, legal persons, and bodies equivalent to legal persons acting in certain capacities can act as patent inventors. The EPO then found that AI was not a natural person or legal person and therefore was not eligible to be a patent inventor. However, the EPO left the door open for the European Patent Convention to legislate such that AI systems would be considered legal persons.

Still, advocates of AI inventorship have had some, at least initial, successes abroad in Australia and South Africa. While the Australian Patent Office found that treating an AI machine as an inventor was inconsistent with Australian patent law, an Australian Federal Court later set aside that decision and found that an AI system or device could be recognized as an inventor under  Australian patent law. The South African Companies and Intellectual Property Commission granted a patent for an AI system created invention and the patent names the AI system as the patent inventor.

While patent offices and courts around the world are presently deciding the issue of whether AI is eligible for patentability, these institutions have generally remained silent about the consequences of their decisions. It is unclear whether inventions generated by AI are eligible for patenting at all, especially if there is no human inventor under the relevant legal provisions, and if AI inventions were eligible for patenting, who would control the patent and make the decisions typically left for human inventors. As the role of AI in invention increases, courts or legislative bodies, as is preferred by the courts, must consider the consequences and better define the law.