PatentNext

PatentNext Summary: Currently, patent laws require human inventors. For this reason, no country or legal jurisdiction presently allows an Artificial Intelligence (AI) to be an inventor. Such patent laws, however, are typically decades old and we can expect continued debate, and possible legislation, on the topic of whether an AI can be an inventor.

SUMMARY UPDATE (08/9/21): Since the initial post, South Africa has issued the world’s first patent that listed an AI inventor. Also, since the initial post, an Australian judge has become the first jurist to rule that AI systems can be recognized as an inventor on patent applications.

The below article provides additional details.

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Can Artificial Intelligence (AI) invent? No, according to various patent offices and patent laws around the world. Resistance to an AI as an inventor primarily stems from the fact that the written text of existing patent laws refers to human inventors, e.g., “individuals” or “persons,” which leaves little or no room for interpretation of a non-human AI as an inventor.

For example, under U.S. Patent law, the term “inventor” is defined as an “individual” or individuals” who “invented or discovered the subject matter of the invention.” 35 U.S. Code § 100(f). Also, Section 101 expressly explains that “[w]hoever invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent therefor.” 35 U.S. Code § 101. Such statutory language thus describes an inventor in terms of a person.

The United States Patent Office (USPTO) recently analyzed this language to find that an AI cannot be an inventor. See Decision on Petition, Appl. No. 16/524,350 (April 27, 2020). The patent application listed no human inventor or human co-inventor, and instead named only an AI inventor identified as  “DABUS (the “Device for the Autonomous Bootingstraiming of Unified Sentience”). Because the patent application failed to name a human inventor and because of the U.S. Patent law’s express language requiring human inventors, the USPTO denied the patent application stating that “only natural persons can be ‘inventors.’” Id.

The USPTO denied the patent application despite the application listing an application that may have fulfilled other patenting requirements, such as utility and novelty. For example, the invention, as presumably discovered by DABUS, was titled “DEVICES AND METHOD FOR ATTRACTING ENHANCED ATTENTION,” and disclosed a device for use during search-and-rescue missions.

Other Patent Offices have come to the same conclusion regarding AI inventors, including denying DABUS related patent applications when filed in respective countries or jurisdictions.   

UPDATE (08/9/2021): Since the initial post, on July 28, 2021, South Africa has issued the world’s first patent that listed an AI inventor. The inventor is DABUS (“Device for the Autonomous Bootstrapping of Unified Sentience”). South Africa does not offer formal patent examination and instead simply requires applicants to merely complete a filing of their invention. Hence, the subject of whether an AI could be an inventor was not analyzed in detail.

Also, since the initial post, an Australian judge has become the first jurist to rule that AI systems can be recognized as an inventor on patent applications. Specifically, Justice Beach, of the Australian Federal Court, found that an inventor can be “non-human.” The patent applications at issue listed an AI inventor named DABUS (“device for the autonomous bootstrapping of unified sentience”). This decision is a split from rulings of other jurisdictions (such as the U.S. and the U.K.) that have considered the same DABUS applications, and that have found that only humans can be listed as inventors.

UPDATE (09/03/2021): In an unsurprising ruling, Judge Leonie Brinkema (Eastern District of Virginia) sided with the U.S. Patent Office (USPTO), determining that an “artificial intelligence [AI] machine” cannot be an “inventor” of a patent under current U.S. patent law. The case involved a patent application filed with the USPTO naming “DABUS” as the inventor. As an interesting side note, she added: “As technology evolves, there may come a time when artificial intelligence reaches a level of sophistication such that it might satisfy the accepted meaning of inventorship.” But, she said, “that time has not yet arrived, and, if it does, it will be up to Congress to decide how, if at all, it wants to expand the scope of patent law.” The case is Thaler v. Iancu, case no. 1:20-cv-00903 (E.D. Va).

The below table illustrates the position of Patent Offices of several countries or jurisdictions, all of which currently do not allow an AI as an inventor, each for the same or similar reasons

Patent OfficeCan an AI be an Inventor?Reasoning
United States Patent OfficeNoU.S. Patent law requires that an inventor must be a natural person, as reflected in numerous references to an inventor as a “person.” See Decision on Petition, Appl. No. 16/524,350 (denying the application listing  DABUS AI as the sole inventor)
United Kingdom Patent OfficeNoAI is not a “person” as envisaged by sections 7 and 13 of the UK Patent Act and so cannot be considered an inventor. See Decision, Appl. No. GB 1818161.0 (denying the application listing  DABUS AI as the sole inventor)
European Patent Office (EPO)NoThe inventor designated in a European patent must be a natural person. See EPO publishes grounds for its decision to refuse two patent applications naming a machine as inventor
Japan Patent OfficeNoThe Japan Patent Act describes an inventor as a natural person. See Article 29 (1).
China Patent OfficeNoThe Chinese Patent Law describes that a patentee may be a natural person or a legal entity, but the inventor must be a natural person. The Chinese Guidelines for Patent Examination describe that “the inventor shall be an individual.” Guidelines for Examination at Section 4.1.2 (“Inventor”). Thus, non-humans cannot be inventors.
South African Patent OfficeYesThe application may identify an AI inventor, at least where the South African application was filed based on an international application (e.g., a Patent Cooperation Treaty (PCT) application) designating an AI inventor, as previously accepted by the World Intellectual Property Organization (WIPO)
Australian Patent OfficeYesAccording to the current judicial interpretation of Australian patent law, an AI can be listed an inventor. However, this interpretation can change with future rulings, or by legislation.

Time will tell whether an AI can be an inventor, but one thing is for sure: it will likely take legislative action to change the various and respective country’s or jurisdiction’s patent laws before an AI can be named as an inventor on a patent application.