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In response to President Biden’s Executive Order on Artificial Intelligence (AI), the United States Patent and Trademark Office (USPTO) has issued guidance for how AI-assisted inventions, or inventions where artificial intelligence contributed to the conception of the invention, will be examined. It was published in the Federal Register on February 13, 2024.

As a basic summary, the guidance is an expected stance and falls in line with how AI is viewed with other intellectual property. If the AI generated the claimed idea and a human only provided minimal/obvious contributions and/or simply reduced the idea to practice, then a patent cannot be granted to the invention. However, if the human “significantly contributed” to the conception or conceived of the idea themselves based on AI output, then the human can be listed as the inventor and a patent can be granted.

This is in line with copyright law (e.g., where AI cannot get a copyright for its output but a human can get a copyright if they make substantial changes to the output themselves) and previous patent law (e.g., AI cannot be a named inventor on a case, and a natural person in general can only be listed as an inventor on a patent application if they contributed to the conception of a claimed idea as opposed to simply taking an idea and reducing it to practice).

As this is just guidance, and not a court decision or statute, it is not binding or precedential in the court system. However, it will define how patent examiners will initially look at the cases, and it does not appear to go against any rulings or statutes currently existing. I would expect this to be adopted into rulings should it ever be the subject of a challenge.


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