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Abstract

As AI systems increasingly generate innovative products and processes, a critical issue to address is the nature and extent of the patent protection that is conferred upon such outputs. The overarching objective of patent law is the support of innovation and progress. In determining applications, the clear focus of patent judgments is whether the claimed invention satisfies the required standards of inventiveness, novelty, and non-obviousness. It is hence curious that incidental references to “individuals” and “persons,” variously scattered through patent statutes, operate to deny recognition of AI inventors. This is the result of the global test litigation instigated by Dr. Stephen Thaler of the University of Surrey related to two products invented by an AI system. These patent applications for a humble beverage container and flashlight have shaken the very foundations of patent law. As the inventiveness of these products was not disputed, it is suggested that this has resulted in the unusual situation of there being “inventions without inventors.” In such a vexing legal and technological context, the objective of this paper is to analyze whether the present requirement in patent statutes for a human inventor should be removed to extend protection to AI-generated inventions. To do so, this paper begins by considering the historical and theoretical underpinning of patent law. It then transitions to an analysis of the notion of inventiveness in patent law and the relevance of human attributes to the conception of an inventor, connecting the Thaler judgments to subsequent legal developments and scholarship. As the patentability of AI-generated inventions is of international relevance, the analysis seeks to transcend national boundaries by identifying concerns, musings, and themes that resonate across the United States, the United Kingdom, and Australia. This paper concludes by presenting a case for statutory reform to permit the patentability of AI-generated inventions.

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