The U.S. Patent and Trademark Office has issued revised guidance on patents for inventions created using artificial intelligence, a fast-developing category of intellectual property law. The advisory says patents may cover AI-assisted inventions in cases where “a natural person provided a significant contribution.” Insofar as what constitutes appropriately significant input, the agency is looking for the “right balance” between “awarding patent protection to promote human ingenuity and investment for AI-assisted inventions while not unnecessarily locking up innovation for future developments,” according to a USPTO blog post.

“The USPTO guidance makes it clear that while AI-assisted inventions are not ‘categorically unpatentable,’ AI systems themselves are not individuals and therefore cannot be inventors, legally speaking,” writes TechCrunch, explaining “at least one human must be named as the inventor of any given claim.”

The USPTO position falls squarely in line with the position taken by the Library of Congress as pertains to copyrightable material, which is that the degree of human input matters, and works that are purely, or even primarily, GenAI are not eligible for copyright.

Defining the degree of human contribution necessary to clear the threshold is a subject of legal debate. “A significant contribution could be shown by the way the person constructs the prompt in view of a specific problem to elicit a particular solution from the AI system,” the guidance says, per Reuters.

The Inventorship Guidance for AI-Assisted Inventions contextualizes the USPTO actions as furthering the goals of President Biden’s October Executive Order on the Safe, Secure, and Trustworthy Development and Use of Artificial Intelligence.

A blog post by Patent and Trademark Office Director Kathi Vidal says the guidance, effective on February 13, 2024, “provides instructions to examiners and stakeholders on how to determine whether the human contribution to an innovation is significant enough to qualify for a patent when AI also contributed.” According to Vidal, “the Department of Commerce is taking the lead on providing a key framework.”

The USPTO emphasizes that it is not “attempting to define or limit what AI does or is, or how people should use it. It’s simply an application of existing statute and precedent to a new technology,” TechCrunch explains, noting that “if tomorrow Congress passed a law saying AI counts as a human for IP purposes, the USPTO would hit ‘undo’ on this whole thing and figure out new guidance for awarding AIs patents.”