By applying for a patent, you are seeking exclusive rights to the technology, inventions, and ideas that make up your invention. This protection helps prevent infringement by competitors and gives you legal permission to sell or license your invention.

To be granted a patent, your invention must meet certain criteria set out by the US Patent Act and court precedent. These necessities include having a technical purpose (e.g., classification of abstract data records, providing computer or memory efficiency), as well as not being an abstract idea (e.g., mental processes or methods for organizing human activity).

Unfortunately, AI technology presents unique obstacles to obtaining patent protection for an invention. These include avoiding ineligible subject matter and the ‘blackbox’ conundrum – where it is unclear whether an AI system or the machine created the invention.

The current patent law regime was written before artificial intelligence existed, which is why it’s difficult to get a patent on an AI invention like Thaler’s. In his case, Thaler sought a patent on his invention of a new food container and light beacon created using DABUS, an AI “creativity machine”.

Unfortunately, the USPTO rejected Thaler’s patent on the grounds that DABUS is not a human being and is thus ineligible for patent protection under the Patent Act. This decision has sparked numerous lawsuits in the United States.

One major concern is that if an AI system lacks patent-eligible subject matter, other people could find it challenging to create and market competing products using patented technology. This presents a major problem, particularly in healthcare where lacking patent rights could prevent professionals from searching for cures to diseases like Alzheimer’s or cancer.

Another concern is the current patent law regime does not adequately address the special features of AI technology. For instance, it does not protect creative AI systems themselves and does not set an adequate standard for AI-made inventions.

Therefore, we propose a new model for patenting AI inventions. This model includes three features: (1) protection of creative AI systems themselves and their made inventions; (2) changing the standard for who qualifies as a ‘person skilled in the art’ to a ‘skilled person using an ordinary AI tool in the art’; and (3) expedited patent examination.

First and foremost, safeguarding creative AI systems as well as any inventions created through them is paramount for overcoming issues related to patent eligibility, POSITA standard compliance, and obviousness. Furthermore, this will assist with determining the utility requirement and increasing transparency within the AI working model.

The current POSITA standard for AI inventions has been proposed to be changed from “person skilled in the art” to “skilled person using an ordinary AI tool in his or her art.” This POSITA standard can help professionals better comprehend the intricate algorithms and versatility of an AI system, giving them a fair perspective when judging obviousness criteria.