AI-Generated Inventions and the Determination of Inventorship in Patent Law

DOI: https://doi.org/10.62517/jel.202614502

Author(s)

Jing Li*

Affiliation(s)

School of Law, China Jiliang University, Hangzhou, Zhejiang, China *Corresponding Author

Abstract

Generative artificial intelligence now yields technical solutions that satisfy the formal requirements of patent law, yet the governing rules still define an inventor exclusively as a natural person. A gap therefore opens between subject-matter eligibility and the factual distribution of creative labour. Widening the meaning of the term inventor cannot close that gap; only a reconstruction of the standards applied at examination and at the stage of rights allocation can. The DABUS applications, pursued across several jurisdictions, demonstrate that declining to recognise machine inventorship is workable in principle but incomplete as a regime: such a decline leaves two questions open. It does not say who holds the rights when no human being contributed, and it does not say how much human involvement is required before a claim to inventorship becomes sustainable. Taking the creative-contribution standard in Article 14 of the Implementing Regulations for Patent Law as the interpretive starting point, this paper argues that machines are excluded from inventorship for want of legal capacity and not for want of contribution, and that the allocation question should therefore be addressed through the contribution standard directly rather than through inquiries into machine personhood. Two consequences follow. The benchmark for inventive step is adjusted according to how far a solution depends on training data and generic models, and the interests of data providers, model developers and prompt users are separated according to what each actually contributed to the generation process.

Keywords

Artificial Intelligence; AI-Generated Inventions; Inventorship; Creative Contribution; Inventive Step; Allocation of Rights

References

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