Artificial intelligence cannot be an inventor.
Federal Court of Justice (BGH) rules in patent dispute
The question of whether artificial intelligence can be the intellectual creator of an invention arises repeatedly, not only in copyright law but also in patent law. Only a natural person can be an inventor. To date, this has been the prevailing view in the literature and has also been confirmed by corresponding decisions of the European Patent Office and courts in the UK, the USA and Australia.
What has actually happened?
The AI "DABUS" (Device for the Autonomous Bootstrapping of Unified Sentience) was named as the inventor in a patent application filed by a food and beverage manufacturer. The patent office rejected the application on the grounds that it could only be a natural person. However, a machine system consisting of hardware and software cannot be an inventor within the meaning of Section 37 (1) of the German Patent Act (PatG), even if it has artificial intelligence functions.
Stephan Thaler, the US researcher who had filed the application for his AI DABUS, filed an appeal against this with the Federal Patent Court, which was ultimately upheld by the Federal Supreme Court.
In the proceedings against the Patent Office, he filed various (auxiliary) applications:
- that a designation of an inventor is not necessary
- to name him as the inventor, but the AI created the invention
- that he, as the applicant, had caused the AI to generate the invention
The Federal Patent Court followed the last request and registered Thaler as the inventor. The BGH addressed this in detail in its judgment.
How does the Federal Court of Justice argue?
On the one hand, the BGH points out that only natural persons can be inventors. This also corresponds to foreign regulations and is therefore consensus.
The inventor must also be named. Beyond the process of inventing, this establishes a legal relationship 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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