Causation and Conception in American Inventorship

17 Pages Posted: 3 Nov 2022

See all articles by Dan L. Burk

Dan L. Burk

University of California, Irvine School of Law

Date Written: October 31, 2022

Abstract

Increasing use of machine learning or “artificial intelligence” (AI) software systems in has led some to speculate that perhaps machines might be considered inventors under patent law. While U.S. patent doctrine decisively precludes such a bizarre and counterproducive result, the speculation leads to a more fruitful inquiry about the role of causation in the law of inventorship. U.S. law has almost entirely disregarded causation in determining inventorship, with very few exceptions, some of which are surprising. In this essay, I examine those exceptions to inventive causality, the role they play in determining inventorship, and their effect in excluding consideration of mechanical inventors under current law.

Keywords: AI, Artificial Intelligence, Patent, Innovation, Invention, Inventorship, Conception, Causation, Reduction to Practice, Laws of Nature, Patent Eligibility, Joint Inventor, Derivation

JEL Classification: L63, L86, O31, O32, O33, O34, P14, H41

Suggested Citation

Burk, Dan L., Causation and Conception in American Inventorship (October 31, 2022). Forthcoming, Duke Law & Technology Review, Vol. 21, 2023, Available at SSRN: https://ssrn.com/abstract=4262477 or http://dx.doi.org/10.2139/ssrn.4262477

Dan L. Burk (Contact Author)

University of California, Irvine School of Law ( email )

4500 Berkeley Place
Irvine, CA 92697-1000
United States
949-824-9325 (Phone)

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