[Patent Talk] Can Artificial Intelligence (AI) Be an Inventor?

This column by patent attorney Taeyoung Lee of our firm was published in Etoday on June 8, 2021. It discusses KIPO's recent request for amendment of the inventor in a patent application that named an AI as the inventor.

[Patent Talk] Can Artificial Intelligence (AI) Be an Inventor?

<PCT application WO 2020/079499 A1, on which the Korean application was based>

KIPO announced on the 4th that it had issued a request for amendment in a patent application naming an artificial intelligence (AI) as the inventor, stating that an AI cannot be an inventor and that the inventor must be changed to a natural person. The applicant was Stephen Thaler, a US AI developer, and the application named DABUS, an AI program he developed, as the inventor.

Korea currently recognizes only natural persons as inventors, as do other major jurisdictions such as Europe and the United States. The same invention has also been refused in Europe and the United States on the ground that an AI cannot be an inventor. However, as AI becomes widespread and cases emerge in which AI learns and creates on its own, a debate has begun over whether AI can be an inventor.

<PCT application WO 2020/079499 A1, on which the Korean application was based>

The main issues discussed in academia include (1) whether AI can be an inventor, (2) who among the AI's developer, owner and user should be regarded as the right holder, and (3) whether the term of protection for AI inventions should be shorter than that for human inventions.

In my personal view, although the AI developer created the AI, inventions that the AI generates through learning fall outside the scope of what the developer could foresee, so the AI, rather than its developer, could be treated as the inventor. However, where the user of the AI program has made a recognizable contribution to the final invention, a joint invention by the AI and the user would also seem possible.

The most difficult issue is determining who owns the rights to an invention made by AI. Even if an AI can be an inventor, it is neither a natural person nor a legal entity capable of holding property rights. If the AI developer or owner uses the AI exclusively, they...

(Please click the link below to read the full column.)

LNB IP Law Firm