The patent applications that indicate an Artificial Intelligence (AI) machine as an inventor were filed in a number of countries and their courts have made their decisions about whether the AI machine can be an inventor. In Republic of Korea, the Seoul High Court recently reaffirmed the decision that the AI machine cannot be an inventor.

Background of the Case

Dr. Stephen Thaler, an American AI engineer, made an AI system “Device for the Autonomous Bootstrapping of Unified Sentience,” which is also called “DABUS.” He filed a PCT application that names DABUS as an inventor and it entered the Korean national phase on May 16, 2021. Its Korean Application No. is 10-2020-700394.

The Korean Intellectual Property Office (KIPO) reviewed the patent application and dismissed it. Here, the KIPO’s ground was that only a natural person can be an inventor and this is supported by the Korean Patent Act and Korean precedent cases. Mr. Thaler appealed the KIPO’s dismissal to the Seoul Administrative Court (SAC).

Subsequently, the SAC affirmed the decision by the KIPO. The main ground of this ruling relies on Article 33 of the Korean Patent Act (KPA) stating that only a natural person can be recognized as inventors and obtain patent rights. It also states that AI, which is considered a form of software or hardware, lacks legal capacity as it is neither a natural person nor a corporation. Consequently, there is no valid reason to allow AI to be an inventor, as doing so may hinder human innovation and benefit only a few large companies that could monopolize AI technologies.  The more details of the reasons are as follows.

• Article 2-1 of the KPA defines an invention as a “high level creation of a technical idea using the laws of nature.” Such “technical idea” and “creation” are based on human mental processes and mental activities, but cannot be based on AI.
• To obtain a patent for an invention, an inventor must have legal capacity. Under Articles 3 and 34 of the Korean Civil Act, only a natural person or a corporation can be endowed with legal capacity. Since AI is neither a natural person nor a corporation, but is rather viewed as a tangible thing in the form of software and hardware under the civil law. So, AI cannot possess legal capacity.
• There is no sufficient rational basis to conclude that allowing AI as an inventor would ultimately contribute to promotion of technological and industrial development in the society. Rather, it might pose a risk of atrophying human intelligence in the future, which could adversely affect human innovation and research. Also, there is a risk that the patent system could become a means for protecting the rights and interests of only a small number of large companies that can monopolize powerful AI technologies.

The SAC’s decision was appealed to the Seoul High Court. And, on May 16, 2024, the court rendered a ruling that affirms the SAC’s decision.

Grounds of the Seoul High Court’s Decision

First of all, the High Court agreed to the reasoning and ruling of the lower court, which are explained above in detail.

Additionally, this court also disagreed with the appellant’s arguments for the following reasons.

• The argument asserts that the patent law should not be limited to natural persons as inventors, as the original legislative intent likely did not consider AI inventors. It calls for addressing any legislative gaps through reasonable legal interpretation. However, the current patent act defines inventors as natural persons, and including AI as inventors based solely on existing regulations is beyond acceptable interpretation. Any future inventions by AI that require protection should be resolved through public discussion and legislative measures.
• The argument also asserts that while AI may not have legal capacity, it could be recognized as an inventor under the patent law, with rights related to AI-generated results assigned to its owner or operator. However, it points out that the patent law states that only inventors or their successors have the right to obtain patents. This provision contradicts the assertion. Therefore, the assertion lacks a legal basis and does not align with the existing patent law framework.

The decision of the High Court has been appealed to the Korean Supreme Court on June 18, 2024. The outcome is anticipated with great interest.