Here is a report on recent news and commentary related to the Federal Circuit and its cases. Today’s report highlights:

  • an article addressing how the Federal Circuit recently ruled that “[a]rtificially intelligent machines cannot be named inventors on patents”;
  • a blog post similarly discussing that, “for the purposes of patent law, an inventor must be human”; and
  • another article arguing that a Federal Circuit holding addressing patent law’s written description requirement, if allowed to stand, “threatens to remove the patent system’s incentives to innovation.” 

Scott Graham published an article for addressing how, in Thaler v. Vidal, a Federal Circuit panel ruled “that the plain language of the Patent Act requires that inventors be natural persons.” As discussed in the article, Thaler argued that “the Patent Act does not explicitly say that only humans can be inventors, and that holding otherwise will slow the use of AI in innovation and incentivize false disclosures to the PTO.” As the article notes, however, the Federal Circuit explained that the “Act expressly provides that inventors are ‘individuals,’ and uses personal pronouns such as himself and herself.” 

Dennis Crouch wrote a blog post for PatentlyO discussing how Thaler’s best argument “relied upon Section 103’s statement that patentability shall not depend upon ‘the manner in which the invention was made.'” Crouch explained, however, that “the Federal Circuit held that provision should be limited only to apply to the obviousness context.” As discussed by Crouch, the Federal Circuit “went on to expressly explain that it is only interpreting the words given by Congress.” Crouch noted that, “[i]f someone wants to change the rules, the correct path is through legislation.”

Retired Federal Circuit Judge Paul Michel authored an article for IPWatchdog urging the Supreme Court to grant certiorari in Juno Therapeutics, Inc. v. Kite Pharma, Inc., a case addressing patent law’s written description requirement. Judge Michel argued that the Federal Circuit’s holding “put[s] a massive new burden on inventors that goes far beyond what Congress put in the patent law.” According to Judge Michel, “[b]y requiring exhaustive, unnecessary, and expensive testing—making patents harder and less valuable to obtain—the ruling makes research institutions and corporations less likely to devote resources to breakthrough technologies.” Moreover, Judge Michel maintained that, “[i]f allowed to stand, the ruling would impose significant barriers to intellectual property protections and the future of Bio-pharma innovation, which is rapidly developing and stands poised for major breakthroughs in treating common diseases like cancer.”