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Current law does not cater for AI ‘inventions’

A recent order of the German Federal Supreme Court has decided that AI cannot be named as an inventor, an Eversheds Sutherland briefing note has pointed out.

This follows a series of decisions issued by the European Patent Office, US Supreme Court and the British Supreme Court, which all confirmed that any application referring to AI as inventor was doomed to fail.

Inadmissible

According to the German court, an application that only refers to an AI system as the inventor is inadmissible, since statute requires that a living person be named.

It added that the patent applicant must avoid contradictory statements about the designated inventor in the application form on the one hand, and the inventor in the description on the other hand.

The Artificial Inventor Project had taken a series of pro bono legal test cases seeking intellectual-property rights for AI-generated output in the absence of a traditional human inventor or author.

It sought reform of patent law on behalf of a scientist who owned an AI system that allegedly conceived of two inventions (a torch and a food container).

Patentability

The scientist sought protection for these inventions in several jurisdictions, starting a debate about the patentability of AI-conceived inventions and ownership of such inventions.

The German court addressed the question of whether it was possible to include a reference to the AI system in the inventor designation, the Eversheds lawyers point out.

The wording proposed by the applicant referred to himself, plus an AI system (DABUS) he caused to generate the invention.

The German patent and trademark office had argued that this combination rendered the ‘inventor’ designation invalid.

The German court determined that the law as it stood did not cater for invention allegedly conceived by AI systems.

None of the decisions touch on material issues, such as the question whether an AI system is capable of inventing. AI systems simply cannot be named as inventors.

For the time being, those who rely on artificial intelligence must refer to a living person as the inventor if they seek patent protection, the briefing note states.