26 March 2021

Can An Artificial Intelligence (AI) Be An Inventor?

Marshall, Gerstein & Borun LLP


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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.
United States Intellectual Property
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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.

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.   

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 Office

Can an AI be an Inventor?


United States Patent Office


U.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 Office


AI 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)


The 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 Office


The Japan Patent Act describes an inventor as a natural person. See  Article 29 (1).

China Patent Office


The 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.

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.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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