Tag: Giles S. Rich Memorial Intellectual Property Competition

by Delon Lier*

Only human beings have been rec­og­nized as inven­tors under the Patent Act. This is large­ly because patents are only grant­ed to inven­tors capa­ble of “con­cep­tion.” Until recent­ly, it was an agreed upon fact that no non-human enti­ties are been capa­ble of per­form­ing the men­tal acts required of con­cep­tion. How­ev­er, advance­ments in arti­fi­cial intel­li­gence (“AI”) tech­nol­o­gy have cast seri­ous doubt on this posi­tion. Thus, the ques­tion has arisen; can an arti­fi­cial intel­li­gence  be rec­og­nized as the inven­tor of a patent? In this con­tri­bu­tion, Delon Lier (‘21) con­sid­ers whether the USPTO was cor­rect in deter­min­ing that the Patent Act and Fed­er­al Cir­cuit prece­dent fore­clos­es the pos­si­bil­i­ty of AI enti­ties being rec­og­nized as inven­tors. Ulti­mate­ly, this con­tri­bu­tion argues that while the USPTO was cor­rect to reject inven­tor­ship under the text of the Patent Act, it was incor­rect in deter­min­ing that any future AI would fail the Fed­er­al Circuit’s legal stan­dard of “con­cep­tion.”