Can AI be the inventor of a patent?

17 April 2023

Advances in AI technologies are increasingly leading to the creation of new works with minimal human input, raising questions on the ownership of such works.

This is of particular interest in the context of UK patent law, where the current position is that patent applications must name a human inventor. In the case of AI-generated inventions, the human(s) that used AI to devise such inventions should be named as the inventor in most cases. The identification of the inventor is significant because the right to own a patent, and therefore its benefits, flows from the named inventor.

Despite the current position, the question of whether an AI machine can be the named inventor of a patent, is currently under the consideration of the UK Supreme Court in Thaler v Comptroller-General of Patents, Designs and Trademarks (the Comptroller-General).

Thaler v Comptroller-General

By way of background, this case concerns two patent applications filed by Dr Stephen Thaler in 2018 – for a food container and a flashing light – each designating “DABUS”, an AI-machine owned and created by Dr Thaler, as the inventor. The key reason provided for this was that Dr Thaler considered it illegitimate to name himself as inventor and take credit for inventions autonomously created by DABUS.

In 2019, both applications were rejected by the UK Intellectual Property Office, partly on the basis that DABUS is not a person, and therefore could not be an inventor under UK patent law. Following dismissals by both the High Court and the Court of Appeal, permission to appeal to the Supreme Court was granted and an oral hearing was held on 2 March 2023.

What next? 

We anticipate a judgment from the Supreme Court in the coming months on the following questions.

  1. Does UK patent law require a person to be the named inventor where the invention was in fact created by an AI machine? 
  2. Similarly, does UK patent law permit the grant of a patent without a named human inventor? 
  3. In the case of an invention made by an AI machine, is the owner, creator and user of that AI machine entitled to a patent for that invention? 

Notably, in a response to a UK Intellectual Property Office consultation conducted in 2022, the Government indicated that it would not, at that stage, make any changes to patent law to protect AI-generated inventions. However, it did claim that it would keep this area of law under review to ensure that the UK patent system supports AI innovation. 

It will be interesting to see whether the Supreme Court’s judgment will prompt legislative development in this space. 

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