This article discusses the scenario if AI recreates a patent.

1. Summary

We believe AI recreating a patented invention will not change the enforcement rights of the patent owner. Similar to how a patent owner may enforce patent rights against humans recreating the patented invention, a patent owner should be able to enforce patent rights when AI recreates the invention.

Throughout history, multiple inventions have been created independently by multiple groups of inventors. Examples of inventions created independently include the telephone, the Turing machine, the transistor, and the integrated circuit. We do not believe that AI creating an invention will change the ability to enforce a patent. Also, AI can not be an inventor in patents or patent applications.

As the first inventors to file a patent application at the patent office are awarded a patent, consider filing patent applications early.

2. Not Uncommon for Different Groups of Inventors to Independently Develop the Same Invention

When inventors have access to the same information and are solving the same problems, inventors can independently create the same invention.

Examples of different groups of inventors independently creating the same invention are:

Telephone - Elisha Gray and Alexander Graham Bell both filed a patent application on the same day for a telephone in 1876. Legend has it that Gray's patent attorney ate lunch before delivering the patent application to the patent office, and during Gray's patent attorney's lunch break, Bell's patent attorney filed Bell's patent application. The patent for the telephone went to Bell.

Turing Machine - Alan Turing and Emil Post both proposed a universal computing machine in 1936. The universal computing machine is currently referred to as a Turing machine.

Transistor - The first working transistor was developed independently by William Shockley, John Bardeen and Walter Brattain at Bell Labs in 1947, and Herbert Mataré and Heinrich Welker at the Compagnie des Freins et Signaux in 1948. Modern electronics would not have been possible without the invention of the transistor.

Integrated Circuits - Integrated circuits (ICs) were independently developed by Jack Kirby and Robert Noyce in the late 1950s. Transistors and other components are combined to create integrated circuits. The continued ability to miniaturize components in ICs is a driving reason for having the electronics we now have.

For more examples different groups of inventors independently creating the same invention, see the Wikipedia article List of Multiple Discoveries.

3. First to Patent Office at Patent Office is Awarded Patent

The US is a first-to-file country which means when multiple groups of inventors file a patent application for the same invention, the first group of inventors that files with the patent office is awarded the patent. Due to first-to-file patent laws, it can be advantageous to file a patent application earlier. Provisional patent applications typically can be filed earlier due to the fewer formal requirements compared to non-provisional patent applications.

4. AI Recreating an Invention

We do not believe AI recreating an invention will be any different from another group of inventors independently developing the same invention. If the invention is patented, the same patent protection applies whether the invention is recreated by another group of inventors or by AI.

When the invention is not patented and multiple groups of inventors created the same invention, the first group of inventors to file a patent application would be awarded the patent so long as the inventors has not taken too long to file the patent application. To learn more about when a patent application needs to be filed see How Long Do Have to File a Patent Application. An invention created by AI is not patentable. To learn more about using AI with patenting see Can use AI and Still Get a Patent