Can AI be an Inventor?

The world is in constant change, particularly driven by the use of artificial intelligence. This gives rise to new, as yet unresolved legal questions. One of them: Can an AI system be considered an “inventor” within the meaning of § 37 of the German Patent Act (PatG)? This very question arose in the case of “DABUS” (Device for Autonomous Bootstrapping of Unified Sentience), an AI system that sought to be named as the “inventor” under § 37 PatG in a patent application for a food and beverage container.

The German Patent and Trademark Office (DPMA) rejected the application. In response, U.S. researcher Stephen Thaler, who is also the developer of “DABUS”, filed a lawsuit.

The “DABUS” Case Explained Briefly:

Dr. Stephen Thaler developed the AI system “DABUS,” which generated two technical concepts: a food container with a special structure for faster heating, and a flashing light with distinctive signal sequences.

Thaler filed patent applications for these inventions worldwide, naming “DABUS” itself as the inventor. His aim was to have the legal recognition of an AI as an inventor tested in court.

The Reasoning of the Federal Court of Justice (BGH)

The BGH makes it clear that an AI cannot be regarded as an inventor within the meaning of § 37 I of the Patent Act (PatG), regardless of how it functions. The decision is based on § 6 PatG, which provides that the inventor or their legal successor is entitled to the patent right. The term “inventor” under § 6 PatG encompasses both the legal relationships and the actual creative contribution or implementation developed by a person. By definition, an AI system cannot assume the role of an inventor, the court argues.

That said, technological progress should be taken into account, and an adjustment could be considered useful. Nevertheless, the BGH sees no reason to broaden the legal concept of “inventor.” What remains crucial is that a human contribution exists and has influenced the overall achievement.

If a patent application mentions that an AI system (e.g., DABUS) contributed to the invention, it is sufficient to name a human as the inventor. It must be clear that the AI is not considered the inventor itself but merely served as a tool.

The BGH therefore makes it unequivocally clear: humans remain at the center of the patent system.

Thaler’s Argument

Thaler argued that the invention was generated entirely by “DABUS,” without any human creative involvement. Therefore, listing a human name would violate the duty of truthfulness in patent law. He compared “DABUS” to a legal entity (e.g., a company), noting that companies are not humans either, yet they possess rights and obligations. On this basis, he maintained that AI should at least be permissible for inventor designation. He further argued that patent law must keep pace with technological progress, otherwise Germany would risk falling behind in global competition.

How Other Countries Deal with AI as Inventors

A clear picture also emerges in international comparison: only humans can be named as inventors.

In late 2023, the UK Supreme Court ruled that the concept of “inventor” in patent law refers exclusively to natural persons. How inventions generated by AI should be treated in the future is, in the Court’s view, a fundamental question for the patent system. It is not for the courts to decide, but solely for the legislator.

In the United States, the Federal Circuit reached a similar conclusion. The term “individual” in the Patent Act refers only to humans. The court held that no alternative interpretation of this unambiguous statutory language is permissible.

A similar debate took place in Australia. While a court of first instance initially allowed AI to be named as an inventor, the Full Court (which hears appeals against first-instance rulings) overturned that decision. In summary, only a natural person can be considered an inventor in Australia as well.

In Japan, the patent application naming “DABUS” as the inventor was also rejected. On 30 January 2025, the Intellectual Property High Court confirmed the ruling: under the current legal framework, artificial intelligences cannot be recognized as inventors, citing the wording of the law. A formal legislative process has been initiated in Japan, and discussions are already underway.

Thus, with its decision of 11 June 2024, the German Federal Court of Justice (BGH) aligns itself with this international consensus. Worldwide, artificial intelligence is regarded as a tool, not as a holder of inventor’s rights. The only exception so far is South Africa, where Thaler succeeded in having “DABUS” recognized as an inventor. Whether this will ever become possible in Germany remains a matter for the legislature.

What matters for the future?

A Human Inventor Remains Mandatory: Even for AI-assisted inventions, a natural person must always be named in the patent application. The AI system serves only as a tool.

Documentation Will Be Crucial: Companies and individuals must clearly record the human contribution - for example, the idea, control, or evaluation of the AI’s results.

Strengthening the Human Role: Despite the growing importance of AI, humans remain legally at the center of innovation processes.

New Standards Will Emerge: In the future, structured records of development processes and AI use will become standard practice to safeguard patentability.

BGH Decision of 11 June 2024 – X ZB 5/22

The contents of this article are for general informational purposes only and do not constitute legal advice.

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"Recht Logisch" ("Legally Speaking" in German): AI Meets the Law is a series by PANTA in which Sara Farahmand-Nejad, AI Fellow at PANTA and aspiring lawyer, explains legal questions surrounding artificial intelligence in a clear and accessible way. The focus is on liability and responsibility, data protection and copyright, shifting norms, new grey areas, and upcoming regulation. Clear, concise, and practical: what applies today, what is coming next, and what it means for businesses, public administration, and everyday life.