As generative artificial intelligence (AI) continues to transform industries, its impact on patent law is raising critical legal questions. From the recognition of AI as an inventor and potential infringement risks posed by the AI-generated outputs to the use of AI in patent validity challenges, the legal landscape is rapidly evolving. This article explores how generative AI is reshaping patent litigation, including the legal implications for inventorship, infringement and validity.
AI as an Inventor
Traditionally, patent law has long assumed—and been built on the premise—that inventions are the product of human ingenuity. As AI-generated inventions become more common, however, courts and patent offices are grappling with how to treat patents listing AI as an inventor.
For example, in 2020, the USPTO made headlines when it denied patent applications listing an AI system named DABUS as the sole inventor on the grounds that an inventor must be human. This issue made its way up to the Federal Circuit in Thaler v. Vidal, 43 F.4th 1207, where the USPTO’s decision was ultimately upheld. This decision has sparked global debate: Can an AI system be recognized as an inventor? While some countries have shown openness to the idea, most countries, including the U.S. and the UK, have maintained that only humans can be inventors.
This debate also has significant implications for patent litigation. If an AI system generated the invention, who owns the rights? Although it’s clear that an AI system cannot be listed as an inventor in the U.S., it’s not clear who should be listed as the inventor. Is it the developer of the AI, the user who deployed it, or is are AI-generated inventions simply unpatentable? Likewise, if an inventor uses AI to make an invention, can they still be properly credited as the inventor? These questions are likely to become central in future patent disputes, particularly as AI-generated inventions become more prevalent and increase in complexity and value.
AI and Infringement—Who’s Liable When AI Copies a Patent
Another concern is the potential for generative AI to inadvertently infringe existing patents. AI algorithms are often trained on vast datasets that include publicly available information, such as patent documents, scientific literature, and technical specifications. While this enables AI to identify patterns and generate novel ideas, it also increases the risk of unintentionally replicating or overlapping with patented technologies without any human intent or awareness.
For example, an AI system may autonomously write and execute software that unintentionally incorporates patented technology. This raises critical questions about liability: Who is responsible for direct infringement—the developer of the AI, the user of the AI, or the AI system itself? Under current patent law, liability typically falls on the entity that makes, uses, or sells the infringing product. However, the autonomous nature of AI complicates this framework, as there may be no direct human involvement in some of the infringing acts. While the ultimate outcome may be the same, the allegations of direct and indirect infringement must be thoroughly considered. Perhaps traditional patent law analysis does not account for the AI-driven scenario.
AI and Patent Validity Challenges
Generative AI is not only reshaping inventorship and infringement analysis but also influencing how patent validity is assessed. One key criterion for patentability is non-obviousness—an invention must not be obvious to a person skilled in the relevant art. But what happens when AI becomes the ultimate “person skilled in the art” (POSITA)? As the use of generative AI in various fields becomes more commonplace, is the standard for non-obviousness being quietly shifted? For example, if an AI system can easily combine existing technologies to arrive at a solution and a typical person skilled in the relevant field is expected to use such an AI in their field, could that solution be deemed obvious, even if a human may not have thought of it on their own? If AI can’t be an inventor, why can it be a POSITA? This issue is particularly relevant in industries like pharmaceuticals and software, where AI is already increasingly used to accelerate innovation.
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While many of these concerns have yet to be fully considered by the courts, the advent of generative AI raises intriguing questions about inventorship, infringement and obviousness—issues that could disrupt traditional frameworks as machines assume roles once reserved for humans. These challenges loom on the horizon as AI’s influence expands, making them a critical trend to watch for litigators, in-house counsel, and innovators alike.