AI Can't Be An Inventor, But How About A POSA?

On April 30, 2024, the U.S. Patent and Trademark Office (PTO) issued a Request for Comment on how AI technology could affect the PTO's evaluation of patentability, particularly with respect to qualifying prior art and the level of ordinary skill in the art. The Request includes 15 questions for public comment in the following three general categories:

• Group A (Questions 1-5): To what extent AI-generated content may be relied upon as prior art and what related safeguard measures (e.g., watermark, notice to examiner) should be put into place.
• Group B (Questions 6-11): How AI technology could impact the analysis relating to the level of ordinary skills in the art, obviousness (e.g., rationale to modify, reasonable likelihood of success), objective indicia of non-obviousness, and enablement.