As Congress prepares to introduce new artificial intelligence (AI) legislation, the potential ubiquitous nature of AI means this technology will influence diverse regulatory and policy spheres. According to a recent study, approximately two-thirds of all existing jobs possess the potential for partial or complete automation.  This finding highlights the profound influence that AI stands to have on various industries across the labor market. While much of the impacts remain to be seen, a recent case offers some guidelines regarding AI and intellectual property policy.

In Thaler v. USPTO, Stephen Thaler attempted to patent two designs authored by his personal AI, the Device for the Autonomous Bootstrapping of Unified Sentience (or DABUS), but both applications were rejected by the United States Patent Office. The decision was based on current patent law which defines a “patentee” as a human inventor. This conforms to the international consensus that intellectual property rights should not be extended to AI. Thaler’s claim was also denied in Australia, New Zealand, Germany, and the United Kingdom.

The consensus of the courts emphasizes the role that humans must play in the creative process. While not explicitly addressing the role that AI will have in the future, the implication of Thaler v. USPTO is that AI is to be used as a tool in development, not as a wholly autonomous generative system. Within the creative process, the need for a human author for IP protections will require generative AI to be designed to fulfill a collaborative role.

According to the U.S. Department of Commerce, the purpose of the patent system is to “foster innovation, competitiveness, and economic growth” both nationally and globally. By compensating inventors with temporary exclusive intellectual property rights, innovation can be incentivized through a private pricing mechanism.

The advent of generative Artificial Intelligence has ignited significant discourse within the realm of intellectual property rights. Concern arises as artists find their creations employed to train generative computer systems, enabling them to autonomously produce renditions of copyrighted artwork. The dissent emanating from this scenario stems from artists voicing their grievances over the lack of compensation for the utilization of their copyrighted works in AI model training. Artists argue that AI-generated creations are derivative in nature, and depreciate the value of their original artwork by flooding the market with comparable pieces.

Allowing AI-generated works to be patented is important, but defining ownership of IP rights will take a calculated approach. An econometrics study predicts that, in the next few decades, an additional $2.6 – $4.4 trillion of value will be added annually from generative AI. A possible amendment to current patent law could be to shift the claim of inventorship from the generative AI to the creators of the AI system. While defining the “creators” of an AI system is difficult, it would allow for the recoupment of investors while not requiring the development of a new legal system.

The Supreme Court case of Thaler v. USPTO highlights the importance of human involvement in the creative process, and positions future generative AI systems to be used as a collaborative tool rather than an autonomous developer. As the economic potential of generative AI becomes increasingly apparent, it is crucial for policymakers to balance incentivizing innovation through intellectual property protections and ensuring fair compensation for human creators.

Jack Barrett is an Intern for the American Consumer Institute, a nonprofit education and research organization. For more information, visit or follow us on Twitter @ConsumerPal.