Patent Office (Again) Seeking Comments on AI InventionsFebruary 21, 2023

On Feb. 14, the United States Patent and Trademark Office published a notice in the Federal Register requesting comments by May 15 from stakeholders regarding the current state of artificial intelligence (AI) technologies and inventorship issues. Acknowledging that AI is playing a greater role in the innovation process, the USPTO is seeking input for incentivizing and protecting AI innovation. The notice sets out a series of questions relating to AI, patents, ownership, and more. Comments must be submitted through the Federal eRulemaking Portal at, using the docket number PTO-P-2022-0045. For more information, contact Matthew Sked, Senior Legal Advisor, Office of Patent Legal Administration, at 571-272-7627. Inquiries can also be sent to

This is not the first time the USPTO has requested public comments on AI inventions. In August 2019, the Patent Office sought feedback on whether the current laws need to be revised to consider inventive contributions by non-natural persons. Based on these comments, a report was issued in October 2020 entitled “Public Views on Artificial Intelligence and Intellectual Property Policy.” Not surprisingly, comments covered both sides of the issue on inventions made without human contributions. In June 2022 the USPTO held its first meeting on artificial intelligence and emerging technologies. Again, there was debate on whether there can be patentable inventions made by AI alone, or with AI as a joint invention with a human.

This new request notes the patent applications filed by Dr. Thaler which identify the sole inventor as his AI system, called DABUS (his acronym for Device for Autonomous Bootstrapping of Unified Sentience). These patent applications were rejected by the Patent Office for failing to name a human inventor. Dr. Thaler appealed to the courts, and lost, at the Eastern District of Virginia (Thaler v. Hirshfeld, 558 F.Supp.3d 238 (E.D. Va. 2021), and at the Court of Appeals for the Federal Circuit (Thaler v. Vidal, 43 F.4th 1207, 1210 (Fed. Cir. 2022), where the Court ruled that the inventor must be a natural person, but did not decide whether an invention made by humans with AI assistance is patentable. Thaler has filed for certiorari at the U.S. Supreme Court, which has not yet decided whether to accept this case.

The patent and copyright laws were created long before the existence of AI, and thus this new technology does not fit well in current laws. In October 2022, the USPTO and the US Copyright Office were requested by Senators Tillis and Coons to create a national commission to consider changes to the law to incentivize future AI innovations and creations. The uncertainty in patent and copyright laws regarding AI creations points to a need to review the laws and their policies, in order to promote the progress of science and the useful arts, as set forth in the U.S. Constitution, Section 8, Clause 8.

Kirk Hartung is a registered patent attorney, and has practiced with McKee Voorhees & Sease PLC since 1982. Kirk is a member of the Mechanical Patent Practice Group at McKee, Voorhees & Sease, PLC. For additional information please visit or contact Kirk directly via email at

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