William & Mary Business Law Review
Abstract
Innovation involving artificial intelligence (AI) is rapidly expanding and diffusing into other areas of technology. Additionally, inventors have been using AI to assist in new technology for quite a while and have likely received patents from the United States Patent and Trademark Office (USPTO or “Office”) for their inventions without disclosing the AI involved in the patentable subject matter. As AI has become increasingly present in the implementation of new technology, the question of whether an AI can be an inventor has arisen. In Thaler v. Iancu and on appeal, the courts have affirmatively said no. However, this decision implicates the reliability, clarity, and incentivization of patents involving this subject matter. Given how fast AI technology has been developing, Congress should act to modernize the Patent Act to account for AI-assisted or -created inventions. In the meantime, this Note suggests the USPTO, through its regulatory power, can help alleviate these concerns by creating an identification system and requiring inventors to disclose the kind of AI involved in the assistance or in the creation of subject matter in patent applications.