The United States Patent and Trademark Office (USPTO) recently released guidance on patents for artificial intelligence-derived inventions.
Finnegan partner Arpita Bhattacharyya told Law360 that the most important clarification from the USPTO is the statement that "AI-assisted inventions are not per se unpatentable, so you can still get patents and we have to determine the proper inventorship."
The guidance shows that "AI can be used as a tool, like any other tool in the invention process, and that does not make the invention unprotectable through patents," she said.
The guidance also states that similar to when multiple people are involved with an invention, and each person has to have made a “significant contribution”, the same also applies when a human invents something with help from AI.
The "significant contribution" test is "still a very fuzzy standard, and I expect a lot of litigation involving this standard in the future, when patents related to AI systems get asserted," Arpita said.
She noted that under the guidance, many people could be viewed as playing a significant role, including those working on the invention itself and those who trained the AI in some situations. Sorting out the contribution of each of those people, who might work for different companies, "could lead to a tricky situation," she said.
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