Only Humans, Not AI Machines, Get a U.S. Patent, Judge Says

(Bloomberg) — A computer using artificial intelligence can’t be listed as an inventor on patents because only a human can be an inventor under U.S. law, a federal judge ruled in the first American decision that’s part of a global debate over how to handle computer-created innovation.

Federal law requires that an “individual” take an oath that he or she is the inventor on a patent application, and both the dictionary and legal definition of an individual is a natural person, ruled U.S. District Judge Leonie Brinkema in Alexandria, Virginia.

The Artificial Inventor Project, run by University of Surrey Law Professor Ryan Abbott, has launched a global effort to get a computer listed as an inventor. Abbott’s team enlisted Imagination Engines Inc. founder Stephen Thaler to build a machine whose main purpose was to invent. Rulings in South Africa and Australia have favored his argument, though the Australian patent office is appealing the decision in that country.

“We respectfully disagree with the judgment and plan to appeal it,” Abbott said in an email. “We believe listing an AI as an inventor is consistent with both the language and purpose of the Patent Act.

Brinkema cited cases in which the U.S. Court of Appeals for the Federal Circuit, the nation’s top patent court, rejected the idea of a corporation being an inventor.

“The unequivocal statements from the Federal Circuit that ‘inventors much be natural persons’ and ‘only natural persons can be inventors’ supports the plain meaning of ‘individual’ in the Patent Act,” the judge ruled.

Artificial intelligence uses a machine to perform steps that mimic the work of a human mind but at lightning speed, and promises to transform everything from drug discovery to autonomous cars.

Thaler created a “creativity machine” called DABUS that “invented” a beverage container and a “device for attracting enhanced attention.” Abbott and his team filed applications in 17 jurisdictions around the world listing DABUS as the inventor. 

The U.S. Patent and Trademark Office rejected the applications for failure to list a person as inventor, and Thaler appealed to the district court. The agency has gathered input from a range of companies and individuals on how to address AI both as an invention and potential inventor, and is seeking comment on how patent eligibility affects investment. 

The agency said the consensus from most commenters was that artificial intelligence isn’t advanced to the point where it could be an inventor, and Congress gave no indication it even considered the issue when overhauling the patent system in 2011, said Kate Gaudry, a patent lawyer with Kilpatrick Townsend & Stockton in Washington who’s been watching the issue closely.

She said the use of the word “individual” was more to be gender-neutral, and likened it to the time when laws referred to “men” and were later interpreted to include women.

While Brinkema said “the law is clear that it needs to be a human, I don’t think the law is clear,” Gaudry said. “It’s ambiguous. The wording indicates the legislators were not thinking about this possibility.”

Both sides agreed that, if DABUS couldn’t be listed as an inventor, then no patent could issue, which can have broad ramifications as AI becomes more advanced, Gaudry said. 

Abbott’s team is appealing decisions it lost, including before the U.K. and European patent offices.

“This decision would prohibit protection for AI-generated inventions and it diverges from the findings of the Federal Court of Australia,” he said. “This means at present that patent protection is only available for these inventions outside the United States.” 

Brinkema rejected Abbott’s arguments that she consider that allowing patents would create incentives for the development of artificial intelligence. That’s up to Congress, she said, not the courts. 

The case is Thaler v. Hirshfeld, 20-903, U.S. District Court for the Eastern District of Virginia (Alexandria)

(Updates with legal expert beginning in 10th paragraph.)

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