Germany: AI cannot be named as inventor - insights from the Bundesgerichtshof’s DABUS decision

Key takeaways from the DABUS decision

• Human influence is mandatory: the BGH emphasised that every AI-generated invention involves some level of human contribution. This influence does not need to be inventive or substantial; what matters is the presence of a human influence in the invention process. Consequently, the individual who had this decisive influence must be identified and designated as the inventor.
• AI cannot be an inventor: the court unequivocally stated that AI systems, such as “DABUS” (Device for the Autonomous Bootstrapping of Unified Sentience), cannot be recognised as inventors. This is consistent with decisions from other jurisdictions, including the European Patent Office (EPO), the US, UK, and Australia, which have all rejected patent applications naming AI as the inventor – see our blogs:
  • Clarifying AI and inventorship: USPTO's guidance for AI-assisted inventions
  • Demise of the machines: Full Court of the Federal Court of Australia overturns ruling on AI as a patent ‘inventor’
  • AI inventorship on the horizon: DABUS comes to Canada
• Application formalities: patent applications must be careful not to include contradictory statements regarding the inventor. In the “Food Container” case, the applicant named himself as the inventor but also suggested the invention was conceived by DABUS, leading to the invalidation of the inventor designation. The court made it clear that, while AI can be mentioned as a tool, the inventor must be a human.

Implications for patent law

The BGH’s ruling brings much-needed clarity to the handling of AI-generated inventions within the framework of existing patent laws. This decision underscores that patent laws are not yet equipped to accommodate AI as an inventor. Therefore, applicants must ensure that a natural person is designated as the inventor to secure patent protection for AI-generated inventions.

Broader impact on AI and intellectual property

This ruling aligns with the broader legal consensus that, while AI can contribute to the creation of patentable inventions, it cannot be attributed inventorship. This stance has parallels in copyright law, where works created solely by AI are typically not granted protection due to the absence of human creativity. 

Navigating the future of AI and patents

The BGH’s decision marks a significant point in the ongoing debate about AI’s role in innovation and intellectual property. It highlights the necessity for human involvement in the patenting process and sets a clear precedent for how AI-generated inventions should be handled. Moving forward, innovators using AI will need to adapt to these legal frameworks, ensuring that human contributors are appropriately recognised in patent applications.

As AI continues to evolve and play a more prominent role in various fields, it remains to be seen how patent laws will adapt. For now, the message is clear: AI may assist in the inventive process, but it cannot replace the human inventor in the eyes of the law.