Where Technology, Innovation and
Protection Come Together
- HOME
- > Blog Main Page
- > Patents
- > Patent Inventors and Copyright Authors: Defining Rights and AI-Assisted Material
Patent Inventors and Copyright Authors: Defining Rights and AI-Assisted Material
By Nicole Maxwell
Patents
What Constitutes Patent Inventorship?
An inventor in patent law is a person who contributes to the creation of an invention. Any person or group of people may apply for a patent. An individual must claim their invention is a “new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof.”[1] The inventor of a patent must claim that their invention is able to be used, is novel, is nonobvious, and must provide a how-to-make and use the invention. If granted, inventors of utility and plant patents will have exclusive rights to the patent for up to twenty years from the date the application was filed, and inventors of design patents will have exclusive rights for up to fifteen years from the date the patent is granted.
Collaborative Inventorship
Two or more people may file patent applications together for joint inventorship. Inventors may file jointly even if they did not work on the project together at the same time, if the inventors contributed unequally, or if either inventor did not contribute to every aspect of the innovation.[2] Once the inventors file for a patent jointly, both inventors will have equal shares in ownership of the patent. Individuals who may contribute money to the patent process but do not help in the invention cannot file for joint inventorship.
Patent Inventor Rights
Patent inventors do not have the right to make, use, offer for sale, sell, or import the invention. Instead, patents grant inventors the right to exclude others from making, using, offering for sale, selling, or importing the patented utility, plant, or design.
Patent Inventorship AI Guidelines
The Federal Circuit ruled in Thaler v. Vidal, 43 F.4th 1207 (Fed. Cir. 2022)[3] that AI systems cannot be named as inventors or co-inventors of patents. An inventor, by law, must be a natural person.[4] In July 2024, the USPTO issued an inventorship guidance update on AI-assisted inventions.[5] The USPTO explicitly states that inventors and joint inventors on U.S. patents and patent applications must be natural persons. The USPTO explained its rationale through the holding in Thaler, further defining an “individual” as a human being.
However, the USPTO’s guidance update allows individuals to be named inventors if the person used AI assistance, but only if the individual significantly contributed to the claimed invention. For example, a person who uses the output of an AI system can claim inventorship if the person makes a significant contribution to the output to create an invention. In a patent application, an individual who used AI assistance must name the human being who significantly contributed to the invention as an inventor but must not list AI as an inventor or joint inventor.
Copyright
What Constitutes Copyright Authorship?
Under copyright law, an author is the creator of an original creation or expression of work. Authorship does not cover ideas, procedures, processes, systems, titles, principles, or discoveries. Authorship only covers original creations and expressions. Copyright authors can protect literary, dramatic, architectural, cartographic, choreographic, pantomimic, pictorial, graphic, sculptural, and audiovisual creations.[6] Copyright authors have immediate protection once a work is created and fixed to a tangible medium, but authors can only enforce copyright if they have a registration.[7] Therefore, only registered copyright owners can sue for copyright infringement.
To constitute an original work, the author must show independent creation and a minimum degree of creativity.[8] To meet the creativity component, the work does not need to be novel or unique; however, it must involve a minimum level of creativity. For example, ingredients for a recipe or contact information in a phone directory do not constitute authorship because listing items does not require any creativity. However, writing a short story or choreographing a dance routine constitutes authorship because both situations require at least a spark of creativity.
Collaborative Authorship
When two or more people collaborate on a work of art, authors can apply for joint authorship. Generally, co-authors will equally own a copyrighted work and have the right to exercise all exclusive rights.[9] Any author can update and edit the copyrighted work, grant third parties’ permission to use the work non-exclusively or transfer an individual share of exclusive rights in the joint authorship to another party.
Copyright Office AI Guidelines
In 2023, the Copyright Office issued a statement of policy stating that copyright protection requires human authorship, and the Office will not register a work if the work’s “traditional elements of authorship were produced by a machine.”[10] The Copyright Act and the Constitution exclude “non-humans” from being considered authors, so AI cannot legally be named as a copyright author. The Copyright Office allows authors to register for copyright protection if human authors use AI assistance. The Copyright Office requires authors to disclose a description of the AI use and the human author contributions if the AI use is more than de minimis.
[1] https://www.uspto.gov/patents/basics/essentials
[2] https://www.uspto.gov/web/offices/pac/mpep/s2109.01.html
[3] https://cafc.uscourts.gov/opinions-orders/21-2347.OPINION.8-5-2022_1988142.pdf
[6] https://www.copyright.gov/help/faq/definitions.html
[7] https://copyrightalliance.org/faqs/why-register-copyright/
[8] https://copyright.uslegal.com/enumerated-categories-of-copyrightable-works/creativity-requirement/
[9] https://copyright.universityofcalifornia.edu/ownership/joint-works.html
TAGS:
RECENT POSTS