An international project is underway seeking protection of intellectual property rights in regard to an invention autonomously created by an artificial intelligence (AI) known as DABUS, and inventor eligibility and the essence of the right to receive a patent are currently being questioned and deliberated in the United States, Europe and other countries. Our firm is serving as counsel in the prosecution of an application belonging to this project in Japan. In view of the importance of protection of AI-created inventions with patent rights, we are participating in the project pro bono.
 
The DABUS project started in Japan with the filing of the national phase entry of PCT/IB2019/057809 (WO2020/079499) with the JPO on August 5, 2020. The national filing document indicated the title of the invention and the inventor as follows.
 
FOOD CONTAINER AND DEVICES AND METHODS FOR ATTRACTING ENHANCED ATTENTION
DABUS, The invention was autonomously generated by an artificial intelligence
 
The national phase entry proceeded as follows.
 

 
In the subject patent application, the name of an AI program ("DABUS, The invention was autonomously generated by an artificial intelligence") was listed as the inventor. The position of the JPO is that the description of inventors is restricted to natural persons and that an AI cannot be listed as an inventor. In this case, the JPO issued a Procedural Amendment Directive against the subject patent application, and, when the applicant failed to amend the description of the inventor, dismissed the application. In response, the applicant proceeded to file a Request for Trial under the Administrative Appeal Act, which was unsuccessful.
 
This was followed by an action for revocation of administrative disposition under the Administrative Litigation Act being filed with the Tokyo District Court, in which a ruling of dismissal with prejudice on the merits was handed down on May 16, 2024.
 
In the ruling, it was determined that since the existing Patent Law does not postulate AI as an inventor, which is limited, rather, to a natural person, the administrative disposition dismissing the subject patent application, which listed "DABUS, The invention was autonomously generated by an artificial intelligence" as the inventor, was legitimate.
 
However, the written ruling presented the following issues that are worthy of note (paraphrased).
 

• In the future, in consideration of the differences between the autonomous creative capacity of AI and the creative capacity of a natural person, it is not inconceivable that a system for the protection of AI inventions might be designed, based on industrial policy that is mindful of changes in the socio-economic structure that will likely be caused by AI. In regard to the duration of a right for an AI invention, for example, such a system might stipulate a different term of duration from that of an invention by a natural person under existing patent law.
• The design of any such system for the protection of AI inventions should be mindful of possible changes in the socio-economic structure that might be caused by AI, should be entrusted to a democratic process via national debate and should be established after wide-ranging inquiry by means of legislative debate regarding the nature of a systematic and rational framework, further reflecting policy regarding other systems or issues concerned with AI.
• For AI inventions that were not conceived of at the time of the legislation, it is likely that existing patent law will be insufficient for resolving all related issues, particularly in view of the changes in the socio-economic structure caused by AI.
• In view of the growing and inevitable importance of industrial policy related to AI inventions, it is crucial to thoroughly examine the issues related to AI inventions via legislative debate in Japan and to determine specific conclusions without further delay.

 
Subsequently, a suit was filed against the district court ruling, in response to which a ruling was handed down by the Intellectual Property (IP) High Court on January 30, 2025.
 
The high court ruling indicated that a patent cannot be granted to an invention created by an AI since existing patent law only recognizes the right to receive a patent of an invention of which the inventor is a natural person. Further, the appeal was dismissed on the grounds that "Plaintiff's assertion that it is possible to grant a patent to an AI invention based on the Patent Law is without reason, regardless of whether or not an AI invention is encompassed by the concept of 'an invention' as stipulated by the Patent Law", and no specific ruling was provided on the issue of whether or not an invention autonomously devised by an AI merits protection by patent.
 
In addition, the ruling noted that the current Patent Law is predicated on the requirement that an inventor be a natural person, and that the question of whether or not to grant a patent right to an AI invention lies beyond the scope of interpretation under existing law. Regarding this question, similarly to the district court ruling, the IP High Court ruling indicated the need to seek legislative solutions based on comprehensive and careful deliberation, with due consideration given to the diverse nature of AI's influence on society.
 
Written Ruling by Tokyo District Court (Japanese)
https://www.courts.go.jp/app/files/hanrei_jp/981/092981_hanrei.pdf
Written Ruling by Intellectual Property High Court (Japanese)
https://www.ip.courts.go.jp/app/files/hanrei_jp/757/093757_hanrei.pdf
The Artificial Inventor Project
https://artificialinventor.com/

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Summary prepared by the International Information Group
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