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USPTO director Kathi Vidal on AI and patents

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Feb 12, 2024
USPTO Director Kathi Vidal pictured in her office with flags

USPTO director Kathi Vidal at her office in Alexandria, Va. Photo: Ashley Gold/Axios

The U.S. Patent and Trademark Office is issuing guidance Monday clarifying AI's role in "inventorship," the concept that allows people to obtain patents for their work, per an announcement shared with Axios.

The big picture: In an interview with Axios, USPTO director Kathi Vidal said she knows artificial intelligence is a rapidly changing field and patent applicants and that inventors need new guidance fast.

Between the lines: The bottom line of USPTO's guidance, developed after a period of public comment: inventions using AI are eligible for patenting, as long as the human involved made a "significant contribution" to the invention.

  • It's one part of USPTO's work deciphering how generative AI impacts the world of patents, copyright and ownership, an area of policy that often ends up being at the whims of court decisions, as the law hasn't kept up well with technological advances.

Zoom in: As USPTO explains in its guidance, "the key question … is whether the human named on a patent made a significant enough contribution to be a named as an inventor."

  • "To secure patent protection, there must be at least one named human inventor who meets that requirement."
  • As Vidal explained in an interview at the agency's headquarters in Alexandria, Va., USPTO awards patents to humans, not to anything else.
  • Although AI may make significant contributions to an invention, it's not up to USPTO to award it inventorship.

What they're saying: "We don't want to discourage people from using artificial intelligence; quite the contrary. The U.S. wants to lead in AI for innovation," Vidal said.

  • "So the only way to get there is to have a patent system that strikes the right balance of making sure we're protecting that human ingenuity in such a way that it encourages people to innovate using AI and encourages investment in that."
  • For the U.S. to stay competitive while AI grows, "we need to move as quickly as possible while being very careful."
  • She added that other countries have laws more conducive to quickly patenting emerging technologies, and the U.S. patent landscape is hamstrung by a few recent Supreme Court decisions.

Yes, but: Technology changes fast, and USPTO may need to change its guidance as it evolves.

  • Vidal: "I see this as an iterative process. It's important not only that we stay abreast of technologies and make sure that if it's evolving in a way that our systems don't work anymore, that we're evolving our systems."
  • "It's much more than who gets listed on a patent."
  • "It really is about, what are the activities we're going to protect, and not overprotect, to make sure that we've struck the right balance to optimize innovation."

What's next: USPTO is considering how else generative AI affects rewarding patents and is determining how to use AI in its own workflows.

  • Vidal said AI might be useful in figuring out which patent application should go to which examiner, and for sorting through "prior art" (evidence an invention already exists) to determine patent eligibility.
  • USPTO is having a public symposium in Los Angeles on March 27 with the Copyright Office to discuss this topic and copyright and generative AI and issues around name, image, likeness and AI.
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