About a year ago, we reported on a case out of the Eastern District of Virginia. Stephen Thaler had appealed a decision by the USPTO refusing to recognize an AI machine he created as a person. Judge Brinkema of the Eastern District ruled that only a “natural person” could be an inventor, based upon language from the US Patent Act, Title 35 US Code.

The AI machine in question, “Device for Autonomous Bootstrapping of Unified Science,” referred to as DABUS, allegedly invented two inventions to which Mr. Thaler states he did contribute. When filing the two patent applications, 16/524,350 “Neural Flame,” and 16/524,532 “Fractal Container,” he listed DABUS as the sole inventor, and instead of providing the inventor’s last name, wrote that the inventions was generated by AI. The USPTO found the applications incomplete for missing a valid inventor. Thaler had petitioned the USPTO director to vacate Notices of Missing Parts sent by the USPTO to Mr. Thaler based upon the “missing” inventor. The USPTO denied the petition and Mr. Thaler requested reconsideration, also denied. Mr. Thaler then filed for judicial review in the Eastern District of Virginia. It was that decision that Mr. Thaler appealed to the Court of Appeals for the Federal Circuit (CAFC).

On Friday, August 5, the CAFC ruled that an AI machine cannot be an inventor, as the machine is not a person. The Federal Circuit relied upon language from the Patent Act that refers to inventors as “individuals,” which they say means that only human beings can be named as inventors on patent applications.

Mr. Thaler made several arguments in support of his position, each of which the CAFC methodically and succinctly shut down, in a relative short opinion of 11 pages.

One of the arguments relied upon the fact that South Africa has allowed a counterpart application with the AI as the inventor. The CAFC shut that down by pointing out that South Africa does not interpret US Patent Law. Ouch.

With the rejection by a panel of the CAFC, Mr. Thaler has two remaining options. He can appeal to the full CAFC (en banc), or he can appeal to the US Supreme Court. However, chances do not seem very high that either body will take up this cause. The last paragraph of the opinion states, “When a statute unambiguously and directly answers the question before us, our analysis does not stray beyond the plain text.” Double ouch.

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