AI Inventorship: The Latest Developments
Written By
Counsel
Germany
As a Counsel in our Intellectual Property Group, I represent national and international companies in all matters of intellectual property. My particular focus lies on litigating patents from all technical areas, including the co-ordination of international patent disputes.
Senior Associate
UK
I am a senior associate in our IP group in London, where I specialise in contentious patent matters. I am particularly interested in the Life Sciences and Healthcare sector.
A recent hot topic in IP law internationally has been whether an AI can be recognised as an inventor under existing patent law. So far, courts around the world, including the UK Supreme Court, the Australian High Court, the US Court of Appeals for the Federal Circuit and the High Court of New Zealand as well as the EPO, have consistently ruled that on the basis of the current legislation, this is not possible.
The German Federal Court of Justice (Bundesgerichtshof, BGH) recently issued its judgment on the same issue. Unsurprisingly, its view is no different: An inventor in the sense of the German Patents Act (Sec. 37 (1) Patentgesetz) can only be a natural person. In particular, the BGH states that the Patents Act would only grant inventor status and associated rights (such as the right of personality) to natural persons. The court also found:
- that a human must be named as the inventor even in cases where AI was used in the discovery of the invention.
- that naming a natural person as inventor in the official application form is not acceptable if at the same time it is also requested to specify in the description that the invention was generated or created by an AI.
- that supplementing the designation of the inventor…
