Artificial intelligence cannot be an inventor.

Federal Court of Justice (BGH) Rules on Patent Dispute

Not only in copyright law but also in patent law, the question repeatedly arises as to whether artificial intelligence can be the intellectual creator of an invention. An inventor can only be a natural person. This has been the prevailing view in the legal literature to date and is also confirmed by relevant decisions of the European Patent Office as well as courts in the United Kingdom, the United States, and Australia.

What exactly happened?

In a patent application filed by a food and beverage manufacturer, the AI “DABUS” (Device for the Autonomous Bootstrapping of Unified Sentience) was named as the inventor. The Patent Office rejected the application, stating that only a natural person could be named as an inventor. A machine-based system consisting of hardware and software, on the other hand—even if it possesses artificial intelligence capabilities—cannot be an inventor within the meaning of Section 37(1) of the Patent Act (PatG).

Stephan Thaler, a U.S. researcher who had filed the application for his AI, DABUS, filed an appeal with the Federal Patent Court, which was ultimately upheld by the Federal Court of Justice.

In the proceedings against the Patent Office, he filed various (alternative) motions:

• that it is not necessary to name an inventor
• to name him as the inventor, even though the AI created the invention
• that, as the applicant, he had instructed the AI to generate the invention

The Federal Patent Court upheld the latest motion and registered Thaler as the inventor. The Federal Court of Justice addressed this in detail in its ruling.

What is the Federal Court of Justice's reasoning?

On the one hand, the Federal Court of Justice (BGH) points out that only natural persons can be inventors. This is also consistent with foreign regulations and is, in that respect, a matter of consensus.

The inventor must also be named. Beyond the act of invention itself, this establishes a legal relationship with respect to the patent (Note: this is a highly personal but transferable right). Ultimately, an individual (human) contribution is required to establish a patent or the right to it.

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