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ARTICLE · 23 FEBRUARY 2024

USPTO: AI Use In Invention Process Does Not Foreclose Patentability

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In accordance with an executive order on the use of artificial intelligence ("AI"), the United States Patent and Trademark Office ("USPTO") published guidance on February 13, 2024...

United StatesIntellectual Property
Brian Nolan
Brian Nolan
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In accordance with an executive order on the use of artificial intelligence ("AI"), the United States Patent and Trademark Office ("USPTO") published guidance on February 13, 2024, that explained that a human can obtain a patent even in instances where "an AI system—like other tools—could perform acts that, if performed by a human, could constitute inventorship under [United States] laws."1 In these instances, to meet statutory requirements, at least one human must have significantly contributed to the discovery of the claimed invention, irrespective of whether an AI system also contributed.2

Background

President Joe Biden issued the "Executive Order on the Safe, Secure, and Trustworthy Development and Use of Artificial Intelligence" on October 30, 2023. That executive order instructed the USPTO to publish guidance that addressed inventorship and the use of AI.3 While the USPTO and the US courts had already established that AI cannot be listed as an inventor on

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