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Artificial Intelligence and Patent Law
December 12, 2024
Advances in artificial intelligence (AI) have raised novel questions for U.S. patent law, just as Al has
raised concerns in other branches of intellectual property law, including copyrights and the right of
publicity. Committees of both the House and Senate have expressed interest in these issues.
In 2024, the U.S. Patent and Trademark Office (USPTO) issued separate guidance documents addressing
(1) whether inventions made using Al are patentable and (2) whether inventions about Al (i.e., new Al
technologies) are patentable. This Legal Sidebar provides an overview of how USPTO guidance and case
law have addressed both of these issues, differing stakeholder perspectives, and potential options for
Congress.
Can Inventions Made Using Al Be Patented?
One important issue for patent law is whether inventions made using Al can be patented. Although U.S.
patent law currently requires a human inventor and does not allow patenting of inventions made solely by
AL, patents can be granted on some inventions that human inventors make with Al assistance.
Current Law Governing Inventorship and Joint Inventorship
The concept of inventorship in U.S. patent law traces some of its roots to the U.S. Constitution.
Congress's authority to establish patent protections-as well as copyrights-is founded on the
Constitution's Intellectual Property (IP) Clause, which gives Congress the power [t]o promote the
Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive
Right to their respective Writings and Discoveries. Thus, the IP Clause allows Congress to give
copyright and patent protections to authors and inventors, respectively. Related to this shared
constitutional foundation, the question of whether inventions made using Al may be patented is analogous
to the question of whether creative works made using Al may be copyrighted-a question explored in a
separate Legal Sidebar.
The Patent Act requires that each application for a patent be made or authorized by the inventor(s), who
must make an oath or declaration that they believe they are the inventor(s). The U.S. Court of Appeals for
the Federal Circuit has held that inventorship requires conception, or mentally forming a complete idea
for a particular new invention that skilled persons in the relevant field would be able to put into practice
without excessive experimentation. As the U.S. Supreme Court has explained, a person need not
Congressional Research Service
https://crsreports.congress.gov
LSB11251
CRS Legal Sidebar
Prepared for Members and
Committees of Congress](ViewImageLocal?handle=hein.crs/goverqa0001&div=1&collection=&method=preview&ext=.png&size=3)
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