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The Intellectual Property StrategistFeaturesArtificial IntelligenceIntellectual PropertyPatent Litigation

Generative AI and Patent Considerations

By James W. Soong
June 01, 2023

All of us have been exposed to and perhaps even overwhelmed by news about generative artificial intelligence (AI). Unlike machine learning technology that merely classifies or predicts, generative AI creates. Industry stalwarts and startups alike have launched generative models that can create new text, images, video, 3D models, and even software code — with the promise of more powerful and disruptive innovations to soon follow. A patent strategy informed by the unique considerations raised by generative AI will optimize protections for innovations in the field. Patent strategies should reflect the current legal landscape as well as anticipate potential future legal developments.

Patent Claims and Inventorship 

The Federal Circuit in Thaler v. Vidal, No. 2021-2347, recently confirmed that an inventor under the patent statute must be a natural person. In this case, Thaler filed with the U.S. Patent Office two patent applications in which artificial intelligence was identified as the inventor. Without regard to the nature of the invention, the Federal Circuit categorically rejected this characterization of inventorship. The decision underscores human innovation as requisite for patent protection in the U.S. The Supreme Court has just refused to hear the case.

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