A human in the loop. That seems to be the answer to the question: "How do I use AI to invent without forfeiting patent protection?" The U.S. Court of Appeals for the Federal Circuit affirmed Thaler v. Vidal in August, confirming that AI cannot be recognized as an inventor under U.S. patent law. Thaler petitioned the Supreme Court, but this was denied earlier this year. However, not all hope is lost for leveraging AI in the invention process.
So far, we know that a human must be involved in the inventive process to qualify for patent protection. How much? We do not know that for sure. Thaler did not expressly address the issue of AI-assisted invention. Thaler explained that the case did not present "the question of whether inventions made by human beings with the assistance of AI are eligible for patent protection."
How much human involvement is required? We may find some more guidance by looking at the threshold for co-inventorship. At a high level, a coinventor must contribute significantly to the conception or the reduction to practice of an invention. Also, the coinventor must have done more than merely explain to the actual inventor well-known concepts and/or the current state of the art.
Those looking to leverage AI in the inventive process should be diligent in recording any evidence of the conception of an invention by a human. This will put the inventor in a better position to demonstrate their right to patent protection.
The linked article goes into further detail about the ramifications of the decision not to grant patents solely to AI. The author proposes that trade secret protection may become more popular. We have yet to see these shifts take full effect, but companies would be wise to develop best practices around their IP creation with the help of AI.
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