Cite as 558 F.Supp.3d 238 (E.D.Va. 2021)
(to repeat this opinion’s refrain) more appropriately addressed to Congress”).
In response to plaintiff’s accusations that the USPTO has not considered the policy ramifications of its decision that an artificial intelligence machine cannot be an “inventor,” the USPTO represents that it “continues to study the impact of artificial intelligence on current patent regulations, and has engaged the public-at-large in a conversation on the subject.” [Dkt. Nos. 24, 25] at 21 n.10. Specifically, the USPTO points to a conference on artificial intelligence policy it held in January 2019, and to requests for public comment “on a whole host of issues related to the intersection of intellectual property policy and artificial intelligence” it issued in August and October 2019. In October 2020, the USPTO issued a comprehensive report on those comments. Id. (citing Public Views on Artificial Intelligence and Patent Policy, available at https://www.uspto.gov/sites/default/files/documents/USPTO_AI-Report_2020-10-07.pdf (visited August 31, 2021)). Many commentators disagreed with plaintiff’s view that artificial intelligence machines should be recognized as inventors—for example, the report found general themes among the comments that:
The majority of public commenters, while not offering definitions of [artificial intelligence (“AI”)], agreed that the current state of the art is limited to “narrow” AI. Narrow AI systems are those that perform individual tasks in well-defined domains (e.g., image recognition, translation, etc.). The majority viewed the concept of artificial general intelligence (AGI)—intelligence akin to that possessed by humankind and beyond—as merely a theoretical possibility that could arise in a distant future.
Based on the majority view that AGI has not yet arrived, the majority of comments suggested that current AI could neither invent nor author without human intervention. The comments suggested that human beings remain integral to the operation of AI, and this is an important consideration in evaluating whether IP law needs modification in view of the current state of AI technology.
Id. at ii–iii; see also id. at 6.
Additionally, the USPTO points to the fact that, contrary to plaintiff’s assertion that the “statutes relied upon by Defendants were passed long before AI-[g]enerated [i]nventions were a reality” and that if Congress had contemplated this artificial intelligence issue, it would have included artificial intelligence machines within the definition of “inventors”; Congress defined an “inventor” as an “individual” through the America Invents Act in 2011, when artificial intelligence was already in existence. See Pub. L. 112-29, § 3(a), 125 Stat. 285 (Sept. 16, 2011); see also H.R. Rep. No. 112-98 (June 1, 2011), available at 2011 U.S.C.C.A.N. 67, 67. Accordingly, plaintiff’s policy arguments do not override the overwhelming evidence that Congress intended to limit the definition of “inventor” to natural persons. As technology evolves, there may come a time when artificial intelligence reaches a level of sophistication such that it might satisfy accepted meanings of inventorship. But that time has not yet arrived, and, if it does, it will be up to Congress to decide how, if at all, it wants to expand the scope of patent law.
III. CONCLUSION
For the reasons stated above, Defendants’ Motion for Summary Judgment [Dkt. No. 23] will be granted, Plaintiff’s Motion for Summary Judgment [Dkt. No. 18] will be denied, and Apper’s Motion to Take Leave to Accept Attached Amicus Curiae Memorandum Opposing MSJ and Motion to Waive Fees [Dkt. No. 27] will be
