APAA e-Newsletter (Issue No. 38, December 2023)

Can Artificial Intelligence Be Recognized as an Inventor in Korea?

Hyekyung (Esther) Hwang (CENTRAL Intellectual Property & Law)


Patent Offices and Courts of major nations traditionally recognize only natural persons as inventors, excluding artificial intelligence (AI) from this category through Patent Acts and judicial precedents. Nonetheless, an intriguing patent application has recently emerged listing AI as an inventor, which serves as a fascinating case study on AI-related patent applications and advancements in Korea.

American AI developer Dr. Stephen Thaler filed an international PCT application (PCT/IB2019/057809) on September 17, 2019, designating an AI system named “DABUS” (Device for the Autonomous Bootstrapping of Unified Sentience) as an inventor. The international application entered the Korean national phase on March 12, 2020, including two inventions: a food container and a neural-flame lamp. The food container, with its fractal structure possessing convex and concave portions on the container’s interior and exterior surfaces, offers much-improved coupling between multiple containers, superior heat transfer characteristics, and a better grip. The second invention is a blinking light-emitting lamp that, through imitation of neural activation patterns, is highly noticeable to the human eye, attracting enhanced attention.

The Korean Intellectual Property Office (KIPO) issued a Request for Amendment for this application in February 2022, indicating that an amendment to the application was necessary to change the inventor from the AI to a natural person. Thaler challenged this request, insisting that he lacks knowledge of the relevant fields, but that DABUS, which he developed, independently generated these two different inventions after assimilating general technical knowledge as it had been trained to do. Thaler did not comply with the Request for Amendment, and thus, the patent application was invalidated on September 28, 2022, reinforcing the stance that an AI system, not being a natural person, cannot be recognized as an inventor.

The decision to invalidate the patent application did not go unchallenged; Thaler filed an administrative lawsuit on December 20, 2022, arguing that the AI system could also be recognized as an inventor. On June 30, 2023, however, the Seoul Administrative Court upheld KIPO’s decision, citing that, under current Korean law, an inventor must be a natural person.

Following similar lawsuits denying the recognition of an AI system as an inventor in major nations including the U.S., Europe, and Australia, this Korean court ruling marks the first time that such a court ruling was made in Asia. However, AI’s role in tasks done by humans cannot be overlooked, such as completing a semiconductor chip in 6 hours instead of the human-standard several months, or enhancing the efficacy of the COVID-19 vaccine by more than 100 times by raising its stability. Although not in the patent field, additional such recent cases of AI contributing to the production of human works ranging from art to music continue to appear day by day.

Considering the pace of AI development, KIPO conducted a public survey from July 20 to September 30, 2023, aiming to fairly and transparently determine the direction of future patent law revision. Key findings of the survey revealed that interest among the young demographics is very high, and that while the general public considers artificial intelligence to be an invention partner (70%), experts evaluate it more as a simple tool (66%). The survey concluded that it is premature to recognize AI as an inventor or a patent holder, but interestingly, about half (50.5%) of participants supported the idea that should patent rights for AI inventions be granted, they should be awarded to AI users inventing using a platform. Finally, a majority of respondents agreed that when granting patent rights to AI inventions, protection should be provided for a shorter period than the current protection period.

While discussions on whether to recognize AI as an inventor are ongoing throughout the IP 5 (Japan, the US, Europe, China, and Korea) and the World Intellectual Property Organization (WIPO), KIPO will continue to determine our country’s position based on the opinions in the survey and continue to respond to ongoing controversies over AI inventors.