Shlomit Yanisky-Ravid (Fordham University School of Law; Yale Law School) has posted Rethinking AI-generated Invention and Patent Protection on SSRN. Here is the abstract:
This chapter examines the profound challenges posed by the invalidation of patent protection to inventions generated by artificial intelligence (AI) systems, with particular emphasis on the implications for innovation, market dynamics, and the doctrinal coherence of patent law. While a minority of jurisdictions acknowledged permissive recognition of AI as inventor, the dominant global approach continues to insist on human-only inventorship. Courts and patent offices have largely avoided substantive engagement with the economic and technological realities of autonomous invention, thereby entrenching a legal framework misaligned with contemporary innovation practices and causing economic harm. Drawing on comparative case studies—especially the global litigation surrounding the “DABUS” patent applications—the chapter explores how rigid adherence to human inventorship undermines the goals of the patent system: incentivizing innovation, ensuring fair competition, and promoting disclosure for the benefit of the public. Denial of patent protection for AI-generated inventions exacerbates free-rider problems, creates market distortions, chills private R&D investment, and risks reshaping innovation economies, particularly in sectors such as pharmaceuticals, biotechnology, and advanced technology in general. The analysis situates these developments within broader law-and-economics discourse, emphasizing that uncertainty in patent eligibility impedes technological progress and diminishes national competitiveness. Ultimately, the chapter argues that voiding AI-generated patents constitutes a fundamental error in legal reasoning, policy design, and economic perspective. It calls for a rethinking of patent law to align with the realities of generative and autonomous technologies, drawing lessons from copyright’s adaptive frameworks. U.S. courts have already embraced the proposed approach through the development of the ‘Lion’s Share’ test, and in a similar vein, the Swiss Federal Administrative Court has recognized DABUS’s inventorship by designating Dr. Stephen Thaler as the legal inventor in light of his substantial contributions, including programming DABUS and providing the underlying data. Policy solutions are proposed to reconcile inventorship doctrine with technological transformation, ensuring that intellectual property law in general and in particular patent law continue to fulfill its foundational mission of advancing science, innovation, and economic welfare.
Highly recommended!
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