A recent decision by the German Bundesgerichtshof (Federal Court of Justice, 2024 June 11, no. X ZB 5/22) found that AI-generated inventions can be registered for patent in Germany, with a natural person listed as the inventor, as long as the requirements for patent protection under German law are satisfied. This ruling is part of the evolving landscape of patent law in response to advancements in artificial intelligence technology, and diverges from more restrictive jurisdictions.
The Court recognized that, "According to the current state of scientific knowledge, there is no such thing as a system that searches for technical teachings without any human preparation or influence." Regarding who is named as a human inventor, the Court stated:
"The question of what type or intensity a human contribution must have in order to justify such an attribution ... is not of decisive importance. In particular, there is no need to conclusively determine whether the position as manufacturer, owner or possessor of such a system is sufficient or whether actions with a closer connection to the technical teaching found are required, such as special measures of programming or data training, initiating the search process that brought the claimed teaching to light, checking and selecting from several results proposed by the system or other activities ... Regardless of how these questions are to be assessed, it remains possible to identify such human contributions even when using systems with artificial intelligence and to derive the status of inventor from this through legal assessment."
This decision, that the use of AI in inventing does not preclude the patentability of the resultant creation in Germany, highlights the importance of updating patent laws to reflect the changing technological landscape to allow worthy inventions to be protectable. It also may provide for strategies for protecting inventions generated through AI in a major market in Europe.
The German decision stands in contrast to similar cases brought forward by Professor Abbott and his team in jurisdictions such as the United States, which require a natural person – a human being – to make a substantial contribution to an invention for the invention to be patentable. Earlier this year, the United Kingdom Supreme Court ruled that if an AI generates an invention, it is inherently unprotectable.
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