Lee International

Patent offices and judicial bodies around the world are gradually settling on the validity of patent applications listing artificial intelligence (AI) as the inventor.  Currently, both the Korean Intellectual Property Office (KIPO) and the Administrative Court in Korea maintain a stance consistent with other jurisdictions, asserting that a patent application must designate a natural person as the inventor.  Consequently, applications listing AI as the inventor are considered invalid.

Amidst ongoing global discussions regarding the recognition of AI as an inventor, KIPO conducted a nationwide survey to gauge perception of AI within the field of intellectual property.  This two-month survey commenced in July 2023.  KIPO recently disclosed the survey findings, which were gathered from both the general public (hereinafter referred to as “non-experts”) and AI experts, with approximately 50% of the AI experts being patent attorneys.  The survey utilized slightly different questionnaires tailored to each group.

Regarding AI’s potential contribution to inventions, 13% of the non-experts opined that AI can independently identify and resolve technical problems without human intervention, whereas this view was shared by only 2% of the experts.  Additionally, while 70% of the non-experts believed that AI could collaborate with humans in technical problem-solving, only 32% of the experts agreed.  Overall, these findings indicate a divergence in perception, with non-experts generally expressing more optimism about AI’s capabilities compared to experts.

In terms of the level of protection for AI-generated inventions (hereinafter referred to as “AI Inventions”), 25% of the non-experts expressed the view that no protection is necessary, while 50% of the non-experts suggested a lower level of protection compared to patents for human-generated inventions.  In contrast, when experts were asked about the adequate protection period for AI Inventions, assuming they require protection, 36% of the experts proposed a 5-year protection period, while 34% advocated for a protection period similar to the current 20-year patent term.  These findings suggest that experts generally advocate for stronger protection measures for AI Inventions compared to non-experts.

In the survey administered to the expert group, additional questions were presented regarding the possibility of AI being recognized as an inventor or its eligibility to possess patent rights.

Of the experts surveyed, 39.2% supported the idea of recognizing AI as an inventor.  Among those advocating for AI recognition as inventors, 35.3% proposed explicitly describing the AI’s contribution process in the specification of a patent application.  Additionally, 33.3% suggested listing AI as a co-inventor, while 25.3% recommended listing a human inventor who utilized AI.  These findings highlight the diverse opinions on how AI should be acknowledged in patent applications.

Furthermore, 75.6% of the experts opposed recognizing AI as a patent holder.  When asked about the allocation of rights in cases where AI contributed to an invention, 50.5% suggested granting rights to the user who directed AI to perform the inventive process, 22.7% favored the developer of the AI, and 16.2% supported the owner of the AI.

The survey findings indicate that approximately 40% of the experts, who typically hold a more conservative view of AI’s capabilities compared to non-experts, support the notion of listing AI as an inventor.  As AI technologies continue to advance, this percentage is likely to grow.  In the ongoing “DABUS case” that we are dealing with, the validity of the patent application listing AI as the inventor is under scrutiny.  The Korean courts will need to factor in this evolving trend when rendering their decisions.