Inventorship and artificial intelligence

The question of inventorship and artificial intelligence concerns whether an artificial intelligence system may be named as inventor in a patent application, and to whom the right to the patent belongs where an invention has been devised with its assistance. As the law stands, the designation of the inventor provided for by Article 81 of the European Patent Convention and Article L. 611-9 of the French Intellectual Property Code refers to a natural person, and the right to the patent belongs to the inventor or his successor in title under Article 60 EPC and Article L. 611-6 IPC.

The requirement of a natural person

Patent offices, in Europe as in most major foreign systems, refuse applications that name a machine as inventor, and the courts seised of those refusals have upheld them. The reasoning rests on the wording of the texts, which reserve to the inventor rights attached to the person, such as the right to be mentioned and the ability to transfer the right to the patent, which a machine cannot hold. The solution is now settled in the practice of the European Patent Office and of the leading national offices, so that an application naming an artificial intelligence system is exposed to refusal for a defective designation.

Attribution of the machine-assisted invention

The requirement of a natural person does not, however, leave the invention without an owner. Practice accepts that the person who framed the problem, configured the system, selected the relevant output or recognised its technical significance may be named as inventor. The difficulty then shifts to proof of the human contribution, which must relate to the conception of the invention and not merely to the performance of a task. Within a company, that contribution is assessed under the regime of employee inventions, which requires an invention disclosure and its classification.

Consequences for examination and validity

The widespread use of learning systems by researchers also raises questions for the assessment of inventive step. If the person skilled in the art is deemed to have the usual tools of the field at his disposal, access to artificial intelligence tools could raise the threshold of what is regarded as obvious. That development remains a doctrinal hypothesis and has not been enshrined in any positive rule. By contrast, an inaccurate designation of inventor may ground an entitlement action by the natural person actually responsible for the invention, which weakens the patent wherever the chain of title is not documented.

Key points

Only a natural person may be named as inventor, and the right to the patent passes from that person. An invention devised with the help of an artificial intelligence system remains patentable, provided that the person who made the decisive intellectual contribution is identified. That contribution should be documented from the research phase, the position of employees regularised through an invention disclosure, and a machine should never be mentioned in the designation of inventor, on pain of refusal of the application.

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This glossary entry is general in scope and does not constitute legal advice.

Dhenne Avocats litigates patent disputes before the Paris Judicial Court, the Paris Court of Appeal and the Unified Patent Court. When the question arises in a real case, the right moment is almost always before proceedings are issued.

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