by Dennis Crouch
Oral arguments in the AI-inventorship case of Thaler v. Vidal are set for June 6, 2022. Prof. Ryan Abbott is set to argue on behalf of the patent owner (and AI creator) Stephen Thaler. Assistant US Attorney Dennis Barghaan will argue on the USPTO’s behalf.
Thaler developed an AI that he calls DABUS. DABUS apparently created two inventions–a “neural flame” and a “fractal container.” But, Thaler refused to name himself as inventor. Rather, he says that it was DABUS who did the inventing. But, the PTO refused to issue the patent without a human listed inventor. After being rejected by the PTO, Thaler filed a civil action in the E.D. Va. That court dismissed the case–holding that a non-human device cannot quality as an “inventor.” Abbott and Barghaan litigated the case below as well.
The question on appeal:
As stated by Thaler: “whether an AI-Generated Invention is patentable.”
As stated by the Gov’t: Whether “an artificial intelligence device comprised solely of source code can qualify as an ‘inventor’ under the Patent Act.”
Lots of folks might resist Thaler’s suggestion that the AI is the one who invented, but at this dismissal stage of the litigation that fact is procedurally assumed to be true. Both sides in this case have good arguments, but we should probably be troubled if the result is that “two otherwise patentable inventions cannot receive patent protection” despite the statutory statement that “[p]atentability shall not be negated by the manner in which the invention was made.” 35 U.S.C. 103.