The counterplan is sufficiently clear—the current doctrine leaves everything open to interpretation. The counterplan does that in a reasonable manner for inventing.

For now, Thaler’s impact may be limited. The Federal Circuit stated that its decision does not address patent protection for inventions made with the assistance of AI, which is likely the far more common scenario at the present time.

If a researcher uses AI as a tool, the use can be analogized to using a computer to conduct complex calculations, data analysis, or simulations in which case the researcher directing or using the AI is likely to be the appropriate inventor.

As AI becomes more sophisticated, however, more research may resemble the facts considered in Thaler, in that the AI machine may actually “conceive” of potentially patentable inventions.

Congress or the Supreme Court could fill the Thaler-sized hole in inventorship eligibility by amending or interpreting the patent statutes to recognize that a natural person controlling, programming, or providing input to an AI is considered the “inventor” for the purposes of applying for patent protection on inventions potentially “conceived” by AI.