Innovation is accelerating at an unprecedented pace, especially in today’s world where artificial intelligence can instantly answer questions and generate content. While this presents exciting opportunities for inventors needing technical descriptions of inventive concepts, it also introduces new challenges to protecting innovation through patents.
From a patent perspective, there are several foundational principles that must be satisfied for an invention to be patentable. While artificial intelligence can help facilitate the patenting process, heavy reliance on artificial intelligence can create future problems for inventors in obtaining and enforcing a patent. So, inventors using artificial intelligence should keep some key considerations in mind:
Patentability Threshold
An invention must meet the basic requirement that it is novel and not obvious. Artificial intelligence, however, uses known information and already created content to create output. So, while artificial intelligence may be helpful in describing a concept, the content it provides may create risk that your invention is determined to not be new or obvious to those in the pertinent field.
Tip: While artificial intelligence can help with what currently exists, be weary of relying on artificial intelligence in describing your invention and make sure your idea truly is genuinely new and represents an advancement beyond existing technology.
Inventorship
Patents are only provided to inventors, and inventors must be human. Inventorship is not about who typed the words or suggested the idea; it is about who conceived of the invention. While artificial intelligence can be a useful tool, it cannot be an inventor. And if an inventor cannot clearly articulate how the invention was conceived and developed, inventorship may be called into question during prosecution or enforcement.
Tip: Artificial intelligence can be helpful in brainstorming, but inventors should ensure they understand the invention described in a patent application and have records of how the inventor (not artificial intelligence) conceived of the invention.
Written Description
To become an issued patent, a patent application must clearly describe the inventive concept in sufficient detail to show that the inventor had “possession” of the claimed invention at the time of filing. Possession does not necessarily mean tangible possession; it can also be conceptual, so long as the application shows the inventor fully understood the invention at the time of filing. This can be problematic if artificial intelligence is used to fill gaps in a written description and there is a disconnect between what is described by artificial intelligence and what is understood by the inventor.
Tip: If you use artificial intelligence to help draft an invention disclosure, review it for your own understanding and make revisions where AI-provided content does not clearly describe what you intend.
Enablement and Best Mode
Enablement requires that the patent disclosure provides enough detail to teach someone skilled in the art how to make and use the invention without undue experimentation. A written description must also provide the best mode, or best way to carry out an invention, if it is known. If artificial intelligence generates steps or mechanisms that an inventor cannot practically implement or validate, the application may fall short of the enablement requirement. Likewise, relying on artificial intelligence can result in generalities of best modes that can create weaknesses in your application.
Tip: Develop the steps and/or mechanisms yourself before using artificial intelligence. While artificial intelligence can help refine content, describing the invention yourself may help enablement even if it requires some additional time upfront. And stay true to your invention. If you have a best mode in mind, describe it yourself.
Best Mode
If the inventor knows the best way to carry out the inventive concept, it must be disclosed. Relying on artificial intelligence-generated generalities instead of your actual preferred implementation can expose weaknesses in your application. Remember, you are the one who had this spark of creativity, so lean into it. While artificial intelligence may offer suggestions, you are the one who knows what works best for your inventive concept.
Tip: Stay true to your invention. It can always be improved upon, but you know best. Trust yourself.
While artificial intelligence may be a wonderful tool to offer suggestions, the inventor is the best source of information regarding an invention. As a result, heavy reliance on artificial intelligence during the drafting process may call the invention and the inventor into question. So, when using artificial intelligence to assist in the innovation and patent process, make sure that the humans taking part in that process can explain and understand how the inventive concept works, what makes it novel, and what technological improvements it brings to the field without reliance on the results from an artificial intelligence prompt.
