While this blog regularly discusses Section 101 issues relating
to Alice and its progeny, a recent decision from the
United States Patent and Trademark Office (USPTO) addresses the
first word of the section – "Whoever." The question
presented was: can an artificial intelligence (AI) entity be an
'inventor' in the United States? The USPTO's answer was
a resounding "no." However, the decision leaves open the
possibility that AI-derived inventions may be patentable, at least
as far as Section 101 is concerned.
Statutory Background
Section 101 states "[w]hoever invents or
discovers…may obtain a patent therefore…"
According to 35 U.S.C. § 100, an inventor is defined as an
individual or individuals. As technology has advanced and the
possibility that AI would invent something became a probability,
the question has arisen whether AI can be an inventor under United
States law.
