Exploring New Approaches to Unsettled Legal Questions

Tag: Patent Law

Inventio Ex Machina: The Patentability of AI Generated Inventions

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.”

Nonce So Fast: Software “Structure” and Algorithmic Specificity in Computer-Implemented Means-plus-Function Patent Claims

by Zachary Hadd*

Despite decades of Fed­er­al Cir­cuit prece­dent, a clear def­i­nite­ness rubric for func­tion­al patent claims cov­er­ing soft­ware inven­tions remains eva­sive. Ques­tions per­sist on what con­sti­tutes suf­fi­cient struc­ture to absolve these claims of means-plus-func­tion treat­ment. The lev­el of algo­rith­mic speci­fici­ty required to ensure def­i­nite­ness for claims that are draft­ed in means-plus-func­tion form is sim­i­lar­ly abstruse. In this Con­tri­bu­tion, Zachary Hadd (’21) argues that even soft­ware-spe­cif­ic “struc­ture” is best inter­pret­ed under the means-plus-func­tion frame­work and that accord­ing def­i­nite­ness to any­thing less than step-by-step algo­rith­mic de-tail is not only unjus­ti­fied, but ulti­mate­ly incon­sis­tent with Fed­er­al Cir­cuit precedent.

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