USPTO Publishes Request for Comments Regarding the Impact of the Proliferation of Artificial Intelligence on Prior Art

Attorney: Nicholas Rosa, Ph.D.
May 22, 2024

On April 30, 2024, the USPTO published a Request for Comments on the future impact of publications by generative AI on the issue of prior art. Previously, the USPTO has consistently come down against generative AI as an inventor, saying that “under current law, only natural persons may be named as an inventor in a patent application.”  See Inventorship Guidance for AI-Assisted Inventions, 89 FR 10043, Docket No. PTO-P-2023-0043.  Based on this stance, however, it is unclear if a publication by a generative AI could be prior art to a patent application.  Toward providing an answer to that question, the USPTO is seeking public comments on “what qualifies as prior art, the assessment of the level of skill of a [person having ordinary skill in the art (PHOSITA)], and determinations of patentability made in view of these evaluations.”<... Read more