The DABUS decision of the Bundesgerichtshof (BGH, Federal Court of Justice, Germany) is another in the series of worldwide attempts by the Artificial Inventor Project, a series of pro-bono legal test cases seeking intellectual property rights for AI-generated output in the absence of a traditional human inventor or author and an attempt to use pro-bono cases, not subject to fully fined arguments, to manipulate copyright and patent law ahead of the processes in place to review how AI should be incorporated into AI by the worldwide regulators and claimed to be “intended to promote dialogue about the social, economic, and legal impact of frontier technologies such as AI and to generate stakeholder guidance on the protectability of AI-generated output”.
The site has some of the cases decided, although not all rulings are present.
Within the patent AI experts, many believe that it his not sufficient that a human being must simply be identified and designated as inventor, but that the human being must have taken material steps in developing the patent, which in many cases simply means that the human being has not simply turned on the AI system and let Pitt work until it has generated a patent, but where the human has had input into the inventive process. This is critical for the future because within 5 to 7 years, as super intelligence arrives, the vast majority of patents will be produced by AI systems. The patent system has been developed to reward the (often many years) of work that the inventor has put in to develop the patent. AI systems by contrast are inference machines and can see obvious patterns and therefore develop patents that are objectively obvious and simply developed from a computerised analysis of existing patents. Given the speed at which AI system will shortly operate, allowing these to register patents in their own names could break the patent system and as inference machines, it is inappropriate to register patents for pure AI inventions as many AI systems will come to the same inferential conclusion without reference to other AI’s work.
Apparently, according to the Artificial Inventor Project postings, in the latest case, ABUS decision of the Bundesgerichtshof (BGH, Federal Court of Justice, Germany) , the court concluded that an AI-generated invention is protectable, and that some natural person can be named as an inventor even if AI has been used to find the claimed technical development – this is nothing novel as the ruling does not suggest that human ingenuity was not involved. The Project claims that “An AI generating an invention does not justify rejection of an application” but this is misleading wording as it has been accepted for some time in many jurisdictions that “An AI being used in the process of generating an invention does not justify rejection of an application for a patent”, and indeed this author gave a talk on that basis in Spring 2022.
As yet there are no rulings that say that human influence is of no importance, and most rulings state that the human contribution must be material and that an invention entirely produced by Al cannot be patented.
We have yet to see the full ruling of the Court and it ice unlikely that the decision stands in contrast to jurisdictions such as the United States which require a natural person to make a substantial contribution to an invention in order for the invention to be patentable, and the United Kingdom which held that if an AI devises an invention it is unprotectable, indeed if it did, this would create a material problem for the patent community as it would call into question the enforceability of German patents in the future anywhere outside of Germany. (It is not the first time that the Project has issued press releases that over-interpret a judgment to suit their agenda and indeed, it is unlikely that the case has been subject to the sort of mass pro-bono filings that would occur in a fully publicised case in the UK or the USA…