In U.S., Only Humans Can Be Inventors or Creators

authorship copyright inventorship patent

In the U.S., patents are issued to inventors and copyrights are registered to authors. Artificial intelligence (AI) has been gaining traction in automation of business processes, creating more efficient applications, and gathering of data analysis. However, as seen with the recent U.S. Copyright Office’s recent Copyright Review Board’s (CRB) decision demonstrates that under U.S. copyright law, only a human being can be deemed an author. That decision of February 14, 2022, rejected the copyright application naming the AI computer, DABUS, or Device for the Autonomous Bootstrapping of Unified Sentience), with Stephen Thaler, the developer of the DABUS system, as assignee, for registration of a two-dimensional work entitled “A Recent Entrance to Paradise.”

A Recent Entrance to Paradise, Copyright Work Arguably Created by DABUS

Dr. Thaler had argued that copyright registration should not be limited to humans, and as such, the rule was unconstitutional per se.  Further, he argued that DABUS could be an author under the work for hire statute of the Copyright Act.  However, the CRB noted that §306 of the Copyright Compendium stated:

The U.S. Copyright Office will register an original work of authorship, provided that the work was created by a human being . . . The copyright law only protects “the fruits of intellectual labor” that are “founded in the creative powers of the [human] mind.”[1]  Because copyright law is limited to “original intellectual conceptions of the author,” the Office will refuse to register a claim if it determines that a human being did not create the work.[2] 

(emphasis added.)

Further, the CRB emphasized that in the Burrow-Giles case, the U.S. Supreme Court referred to authors as “humans.”[3] As to the work-for-hire doctrine, the CRB noted a “work is created as a the result of a binding legal contract . . . The ‘Creativity Machine’ [DABUS] cannot enter into binding legal contracts and thus cannot meet this requirement.”

The CRB decision mirrors the recently decided corollary patent application cases, for which Dr. Thaler filed on behalf of DABUS with numerous patent offices around the world, including the U.S. Patent and Trademark Office (USPTO). The USPTO rejected the applications for failure to name an “inventor” as required under the Patent Act. The USPTO noted that under 35 U.S.C. §115(a), ‘an application for patent . . . shal linclude, or be amended to include, the name of the inventor for any invention,” in which “inventor” is defined as “the individual [] who invented or discovered the subject matter of the invention.”[4]


Conception is the touchstone of inventorship, the completion of the mental part of invention.  It is the formation in the mind of the inventor, of a definite and permanent idea of the complete an doperative invention, as it is hereafter to be applied in practice.  Conception is complete only when the idea is so clearly defined in the inventor’s mind that only ordinary skill would be necessary to reduce the invention to practice, without extensive research or experimentation.[5]

In fact, patent examination guidelines state that the definition for inventorship can be simply stated: ‘The threshold question in determining inventorship is who conceived the invention. Unless a person contributes to the conception of the invention, he is not an inventor.”[6] In response, Dr. Thaler appealed the USPTO’s decision to the U.S. District Court, Eastern District of Virginia. However, the federal judge upheld the USPTO decision on September 2, 2021. The US decisions follow other rejections around the world, including the European Patent Office (EP)’s decision rejecting a pair of DABUS applications on January 27, 2020, and the British courts upholding rejection of the the DABUS application before the UKIPO on September 21, 2021.

Dr. Thaler is not without some legal protections, as the DABUS patent has been allowed for grant in South Africa, on July 28, 2021, and received a favorable decision before the Australian courts, although this judgment is pending given that IP Australia will appeal the decision to the appellate court.

For more information on patentability or copyrightability, please contact Yonaxis I.P. Law Group.

[1] Trade-Mark Cases, 100 U.S. 82, 94 (1879). 

[2] Burrow-Giles Lithographic Co. v. Sarony, 111 U.S. 53, 58 (1884).

[3] Id.

[4] 35 U.S.C. §100(a).

[5] Citing Burrows Wellcome Co. v. Barr Labs., Inc., 40 F.3d 1223, 1227-28 (Fed. Cir. 1994).

[6] M.P.E.P. §2109.