No.243:

October 03, 2022

KIPO finds that AI cannot be a legal ‘inventor’ under the Korean Patent Act

- The Korean Patent Act requires an “inventor” to be a “natural person.”-

□ The Korean Intellectual Property Office (Commissioner Dr. LEE Insil) denied the DABUS application*, a PCT application for an AI-generated invention, on the ground that an “inventor” had to be a natural person (28 September 2022).

【 PCT international patent application* for AI invention】 (Filed with KIPO on 17 May 2021)
□ A PCT application was filed by Dr. Stephen Thaler, the inventor of DABUS (the AI)**, by naming AI as the inventor. The patent has been applied for in 16 jurisdictions including the Republic of Korea. The applicant claims that he does not hold any knowledge of the invention and that “DABUS” developed by himself solely created two different inventions, such as a food container, etc. after being trained with general technical knowledge.
* A PCT application makes it possible to seek patent protection for an invention simultaneously in a large number of countries by filing a single “international” patent application instead of filing several separate national or regional patent applications. The granting of patents remains under the control of the national or regional patent Offices.
** DABUS : Device for the Autonomous Bootstrapping of Unified Sentience

□ KIPO issued a request for amendment to the ’DABUS’ application naming AI as an inventor in February 2022, noting that an “inventor” had to be an individual as “a natural person”, so in this respect DABUS AI listed as an ’inventor’ should be amended as a natural person. The applicant did not respond the request, and the application was finally dismissed.

ㅇ The Korean Patent Act and relevant precedents recognize natural persons only as valid inventors, and this principle is observed in the patent laws of all countries including US, UK, Germany, etc.

□ Key IP offices have also drawn the same conclusion, and the US and UK courts uphold the conclusion.

ㅇ In case of Australia, however, the Federal Court of Australia, acting as the first instance court, had accepted an AI as a valid inventor in July 2021, but the higher court of appeals unanimously reversed the decision in this April.

The Federal Court of Germany issued the ruling in last March, saying that “natural persons only are recognized as valid inventors, but information regarding the AI can also be described in parallel when naming the inventor”.

□ Meanwhile, in December last year, KIPO hosted an international conference virtually with seven major IP offices from US, Europe, China, etc. being attended.

ㅇ The participating offices raised the same voices that AIs cannot independently create an invention without the involvement of a human being at the current stage of technology and that international harmonization on law is preliminarily required because differences in relevant legislations may hinder the development of the AI industry.