As the capabilities of Artificial Intelligence (AI) develop[1], the United States Patent and Trademark Office (USPTO) continues to grapple with a key question: Can an AI be an inventor?

On February 14, 2023, the USPTO posted a notice on Regulations.gov titled “Request for Comments: Artificial Intelligence and Inventorship[2].” This notice, however, is not the USPTO’s first attempt to understand AI’s ever expanding role in innovation.  The USPTO previously requested public comments on AI inventions in 2019, which it responded to in a publication titled “Public Views on Artificial Intelligence and Intellectual Property Policy[3].” Additionally, the USPTO held an AI/ET Partnership meeting in June of 2022 which included a panel discussion titled “Inventorship and the Advent of Machine Generated Inventions.”

Below is a sample of the questions posed to the public. Comments will be accepted until May 15, 2023.

• How is AI, including machine learning, currently being used in the invention creation process?
• How does the use of an AI system in the invention creation process differ from the use of other technical tools?
• If an AI system contributes to an invention at the same level as a human who would be considered a joint inventor, is the invention patentable under current patent laws?
• What statutory changes, if any, should be considered as to U.S. inventorship law, and what consequences do you foresee for those statutory changes?
• Are there any laws or practices in other countries that effectively address inventorship for inventions with significant contributions from AI systems?

The notice also indicates the “Journal of the Patent and Trademark Office Society” is planning on publishing an issue focused on inventorship and AI-enabled innovation. The USPTO is encouraging scholars from a variety of subject matters, including computer science, law, and economics, to submit to the publication. Submissions are due directly to the journal at editor@jptos.org by July 1, 2023.

[1]ChatGPT is an AI chatbot phenomenon which can write songs and answer intricate questions. See e.g., Kelvin Chan, What can ChatGPT maker’s new AI model GPT-4 do?, AP NEWS (Mar. 15, 2023)( https://apnews.com/article/chatgpt-gpt4-artificial-intelligence-chatbots-307e867e3fe4464be9c4f884909f3977.

[2] Request for Comments: Artificial Intelligence and Inventorship, 88 FR 9492.

[3] Public Views on Artificial Intelligence and Intellectual Property Policy, USPTO (Oct. 2020), https://www.uspto.gov/sites/default/files/documents/USPTO_AI-Report_2020-10-07.pdf.