Bloomberg Law
March 17, 2023, 7:15 PM

Can AI Invent? High Court Asked to Take Up Thorny Patent Issue

Kelcee Griffis
Kelcee Griffis

A computer scientist seeking recognition from courts around the world that his artificial intelligence program qualifies as an inventor is taking his case to the US Supreme Court.

Stephen Thaler filed a petition for review Friday, his lawyers said, asking the justices to consider whether inventions created by his AI program should be eligible for patent protection. The appeal seeks to reverse a Federal Circuit decision that held inventors must be humans.

“This holding—which overlooks that ‘individual’ may simply refer to a single entity as opposed to a collective such as a corporation or government—completely denies patent protection to any and all inventions created by an AI system without a human inventor,” Thaler wrote in his petition.

So far, courts in the European Union, the United Kingdom, and Australia have refused to accept Thaler’s argument. The UK’s Supreme Court weighed the debate earlier this month, with a decision expected later. Thaler’s only currently existing win is from a South African court.

Last August, the US Court of Appeals for the Federal Circuit ruled that the US Patent and Trademark Office rightly denied Thaler’s applications for two patents covering a food container and a light beacon because they listed his “creativity machine” DAUBUS as the inventor.

The court rejected Thaler’s argument that the term “individual” in the Patent Act should be interpreted broadly to fulfill the law’s goal of promoting innovation.

During oral argument, the judges were skeptical about how the plain meaning of “individual” could be stretched to include an AI entity and how there could really be no human involvement in an invention. The court ultimately found there was “no ambiguity” that inventors must be people.

Separately, Thaler has sued the US Copyright Office to register a copyright for art created solely by an AI program.

Brown, Neri, Smith and Khan LLP represents Thaler. The US Solicitor General represents the government.

The case is Thaler v. Vidal, U.S., No. 22A615, petition filed 3/17/23.

To contact the reporter on this story: Kelcee Griffis in Washington at

To contact the editor responsible for this story: Jay-Anne B. Casuga at