When it comes to the use of AI in the inventive process: Is there room to confirm the subjective inventorship standard in a world of objective patentability criteria?

Abstract

Abstract While the requirement of substantial participation in the inventive process reflects a subjective standard of inventorship, patentability criteria remain objective. As a result, although patent protection presupposes sufficient human participation, which is especially important for AI outputs, there is no mechanism to assess such participation, since patentability criteria focus on the output itself irrespective of the inventive process. However, the current study argues that there is no insurmountable gap between the subjective standard of inventorship and the objective inventive step criterion, as compliance with the inventive step requirement also evidences sufficient human participation. To illustrate this, the study examines how the level of human contribution required for inventorship can be reflected through the inventive step criterion. The article discusses the evaluation of the inventive step and argues that a person skilled in the art must be considered ‘AI‐equipped’. It then illustrates how subjective participation in different stages of the inventive process corresponds to the objective assessment of outputs. The study concludes that if an output is obvious to an ‘AI‐equipped’ person skilled in the art, no substantial contribution sufficient for inventorship was made; conversely, if it is non‐obvious, the required substantial contribution was made during one or more stages of the inventive process.

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