Patents can only name humans as inventors. For now.
When the biotech company Insilico Medicine used its computer models to propose a promising drug for pulmonary fibrosis, it enthusiastically claimed in a press release that the molecule had been “discovered by” its generative AI platform.
Insilico leads a pack of companies using AI to rapidly come up with drug ideas humans might never think of, potentially speeding the race to new cures. AI models are now able to generate atomic designs for drugs almost as easily as ChatGPT can write a thank-you note.
However, when it came time to file for an all-important patent to protect that new chemical structure, the company made no mention of AI. Instead the patent names five humans, including CEO Alex Zhavoronkov, as the drug’s “inventors.”
The discrepancy points to a fascinating wrinkle in intellectual-property law. No matter how fundamental an AI is to a discovery, when it comes to winning rights to an invention, it’s humans—and only humans—who can take the credit.
US courts reached that conclusion after Ryan Abbott, a partner at the LA law firm Brown, Neri, Smith & Khan, brought a pro bono test case naming an AI called DABUS as an inventor of a better food container, whose intricate geometric surface lets it transfer heat well and stack easily. Because no human contributed to the design, Abbott argued that the AI should be named the inventor.
The case might have raised philosophical questions, like whether AIs deserve legal rights or what the true nature is of that eureka moment that leads to a better mousetrap. But in 2022, an appeals court in Washington, DC, said these “metaphysical matters” were beside the point. Instead, it noted that US statutes describe an inventor as an “individual,” the plain meaning of which is a human being.
Since machines aren’t people, they can’t be inventors. Case closed.
“There needs to be a human inventor or there’s no invention and no patent,” says Sarah Korman, a patent attorney who is now chief business officer and legal officer of Isomorphic Labs, an Alphabet spinout with big ambitions for AI cures. Korman, who made her remarks at MIT Technology Review’s EmTech event last year, added that there is “no doubt” our laws will need to evolve to keep pace with AI.
That’s partly because no one is denying that AIs can invent things. In the future, they may do so with less and less human intervention. As the US Patent and Trademark Office has itself acknowledged, “an AI system—like other tools—may perform acts that, if performed by a human, could constitute inventorship under our laws.”
Instead, the key question going forward may actually be whether or not any human contributed enough to be named as an inventor. Abbott believes there could be legal challenges to AI-generated drugs, since one way to invalidate a patent is to show it has the wrong inventors listed.
Abbott’s worry is that if US policy excludes AI-generated outputs from protection, that could put a damper on future drug development. Already, the US Copyright Office is refusing to grant copyrights to images and text generated by AI, raising concerns from organizations like the Motion Picture Association of America, whose members are using those tools.
The point of our intellectual-property laws is to encourage innovation, Abbott says. It’s right there in Article 1 of the US Constitution, which says inventors and authors need to be given exclusive rights to their ideas, for a limited time, in order “to promote the Progress of Science and the Useful Arts.”
Currently, the US patent office seems to be taking a don’t-ask-don’t-tell approach to the use of AI. Under the Biden administration, the agency published guidance to help applicants determine whether and when humans would truly qualify as co-inventors of an AI discovery. But after Trump arrived in office, it reversed course. Now the patent office says AI is merely a tool, like a calculator. No need to even mention it.
You can bet that pioneering AI drug companies are keeping humans in the loop, at least for now, and documenting everything carefully. At Insilico, Zhavoronkov says, human chemists still have to synthesize the drugs, create variants, and test them on animals. “That’s the person who is going to be named on the patent,” he says. “And even if you decided to completely roboticize this process, including the experiments, someone will still push the button and give the budget.”
Should pushing a button count as being an inventor? Abbott says that’s a question for future legal cases. “What if I asked Claude to cure cancer, and it did?” he says. “I think it would be inappropriate to claim that I invented that.”
This article first appeared in The Checkup, MIT Technology Review’s weekly biotech newsletter. To receive it in your inbox every Thursday, and read articles like this first, sign up here.
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Facts Only
* Insilico Medicine used a generative AI platform to propose a drug for pulmonary fibrosis.
* The patent for the chemical structure names five humans, including CEO Alex Zhavoronkov, as inventors.
* US courts ruled in 2022 that an AI called DABUS cannot be an inventor.
* The Washington, DC appeals court based its decision on the statutory definition of an "individual" as a human being.
* Sarah Korman is the chief business officer and legal officer of Isomorphic Labs.
* The US Patent and Trademark Office previously published guidance on human co-inventors for AI discoveries under the Biden administration.
* The US Patent and Trademark Office reversed this guidance under the Trump administration, classifying AI as a tool.
* The US Copyright Office refuses to grant copyrights to AI-generated text and images.
* Ryan Abbott is a partner at the law firm Brown, Neri, Smith & Khan.
* Article 1 of the US Constitution grants exclusive rights to inventors and authors to promote science and the useful arts.
Executive Summary
Current US intellectual property law mandates that only human beings can be recognized as inventors or authors. This creates a legal discrepancy for biotech companies, such as Insilico Medicine, which publicly credit generative AI for drug discovery but list human employees on patent filings to ensure legal protection. This tension was codified by a 2022 court ruling regarding the AI system DABUS, which determined that statutory language defining inventors as "individuals" excludes non-human entities.
The regulatory environment remains volatile, with the US Patent and Trademark Office shifting its stance on whether AI requires disclosure or is simply a tool akin to a calculator. Legal experts express concern that if AI-generated outputs are excluded from patent and copyright protections, the incentive for innovation in drug development could diminish. While some argue that human intervention—such as synthesizing molecules or providing funding—justifies human inventorship, others question whether "pushing a button" constitutes a legitimate claim to discovery.
Full Take
The strongest version of this narrative is that the law is a lagging indicator of technological reality. If the primary purpose of patent law is to incentivize the "Progress of Science," then tethering that incentive to biological humanity rather than the act of invention creates a systemic fragility that could stifle life-saving research.
The narrative relies on a specific tension: the gap between corporate marketing (AI as the "discoverer") and legal survival (humans as "inventors"). This reveals a pragmatic hypocrisy where the "eureka moment" is commodified for PR but strictly anthropomorphized for profit. The core assumption is that "inventorship" is a binary state—either a human did it or a machine did—ignoring the emerging spectrum of human-AI synthesis.
This echoes the historical struggle to define authorship during the rise of photography or electronic music. The paradigm here is one of "Legal Personhood," and the current refusal to extend it to AI preserves human agency but risks creating a "patent vacuum" where the most efficient discovery methods are legally unprotectable. The beneficiaries are current incumbents who can still "humanize" their workflows; the costs are borne by future innovators who may find their AI-driven breakthroughs open to immediate appropriation.
Patterns detected: none
If this were an influence campaign, the playbook would involve fabricating a "crisis of innovation" to lobby for immediate legislative changes that benefit specific AI conglomerates. The content does not match this; it is a descriptive analysis of current legal contradictions.
Bridge Questions:
1. If a drug is discovered entirely by AI with zero human intervention, does granting a patent to a human "button-pusher" reward innovation or merely reward ownership of the tool?
2. Would a "sui generis" category of AI-patents—with shorter durations or different requirements—resolve the incentive problem without redefining humanity?
3. How does the "don't-ask-don't-tell" approach of the patent office affect the transparency and reproducibility of scientific discovery?