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On August 5, in Thaler v. Vidal, No. 2021-2347 (Fed. Cir. 2022), the U.S. Court of Appeals for the Federal Circuit ruled in a precedential opinion that artificial intelligence (AI) cannot be an inventor on a U.S. patent.

The inventions in question allegedly were developed solely by Steven Thaler’s AI system called “DABUS,” which stands for “Device for the Autonomous Bootstrapping of Unified Sentience.” Thaler has described DABUS as “a collection of source code or programming and a software program.”

In July 2019, Thaler sought patent protection for two of DABUS’ putative inventions by filing two patent applications with the U.S. Patent and Trademark Office (PTO), listing DABUS as the sole inventor on both applications. In lieu of an inventor’s last name, Thaler wrote on the applications that “the invention [was] generated by artificial intelligence.” The PTO concluded that both applications lacked a valid inventor and were, therefore, incomplete. It sent Thaler a Notice to File Missing Parts of Nonprovisional Application for each application and requested that Thaler identify valid inventors. Thaler petitioned the PTO to vacate the Notice, which the PTO denied. Thaler sought reconsideration of the denial (also denied), and then pursued judicial review of the PTO’s decisions in district court. The district court granted summary judgment to the PTO, concluding that an “inventor” under the U.S. Patent Act must be an “individual” and the plain meaning of “individual” as used in the statute is a natural person.

Thus, the question before the Federal Circuit in Thaler was whether anyone other than a human being can be an inventor of a U.S. patent. In examining this question, the Federal Circuit looked to the statutory language of the U.S. Patent Act, which defines an “inventor” of a patent as “the individual…who invented or discovered the subject matter of the invention.” However, as the Federal Circuit observed, the Patent Act does not define “individual.”