DABUS – AI still no inventor
The German Federal Court of Justice has confirmed that an artificial intelligence cannot be an inventor, thus joining a number of similar rulings in other countries.
Some time ago we reported in our B&B Bulletin on the decision of the European Patent Office to only allow natural persons as inventors (https://www.boehmert.de/en/its-only-human/). In the meantime, the same applicant had also named the artificial intelligence DABUS as the inventor in a related German patent application DE 10 2019 128 120, only to be rejected by both the German Patent Office and the Federal Patent Court. The applicant’s appeal to the Federal Court of Justice (BGH – X ZB 5/22) has now also turned out unsuccessful. The Federal Court of Justice has confirmed that inventors can only be natural persons, i.e. humans.
Similar decisions against DABUS had already been made by courts in the USA, the United Kingdom, Australia, New Zealand and Japan. As things stand, only South Africa has a heart for machines. The South African Companies and Intellectual Property Commission (CIPC) registered the corresponding patent with DABUS as the inventor back in 2021.
The judges at the Federal Court of Justice argued in their ruling that by law the inventor is the holder of a right. This can only be a person, i.e. a human. Furthermore, according to the current state of scientific knowledge, there is no system that searches for technical teachings without any human preparation or influence. In the court’s view, a human is involved in every invention, even if the invention is created using artificial intelligence as a tool. The human may be involved as a programmer, for data training, when initiating the search process or in selecting the results provided by the machine. This person can then be named as the inventor, even if, from the applicant’s point of view, the artificial intelligence has made the major contribution to the invention.
In its decision, the Federal Court of Justice does, however, allow the naming of a human inventor with the addition that the inventor “induced the artificial intelligence DABUS to generate the invention.” This addition is, however, “legally irrelevant” and is probably of little comfort to the patent applicant.
In summary, the current legal situation remains that only humans can be considered as inventors. In this respect, patent applications in the field of artificial intelligence are no special and are subject to the familiar rules of the game. However, when drafting such patent applications, a number of other important peculiarities must be taken into account. In particular, the patent application should contain extensive information on the training data used and on the results achieved in order to enable the patent office to understand the invention and to meet the feasibility requirements.
In practice, it is also important to define contractually at an early stage of an AI project, and with the involvement of all parties concerned to whom the rights to the invention should belong in order to avoid subsequent disputes.
We will continue to keep you regularly informed about developments in IP law in the exciting field of artificial intelligence.