Lee International

In June 2026, the Ministry of Intellectual Property (MOIP) published the Guide to Proper Patent Filing in the Age of Artificial Intelligence (AI) (the “Guide”), reaffirming the principle that inventions developed with the assistance of AI may be eligible for patent protection only where a human has made a substantial contribution to the inventive process.  The Guide was issued in response to the growing number of patent applications involving AI-assisted inventions, driven by the increasing use of generative AI in research and development. It outlines key considerations and patentability requirements for filing patent applications involving AI-assisted inventions.  For foreign companies utilizing AI in their research and development activities, the Guide provides a useful opportunity to review their internal practices for managing inventions and preparing patent applications in Korea.

Substantial Human Contribution to the Inventive Process Is Essential

According to the Guide, an invention developed with the assistance of AI may be eligible for patent protection only if a human has made a substantial contribution to the inventive process.  Merely providing general instructions to an AI system and filing a patent application based on the resulting output is insufficient to establish patentability.  Even if a patent is granted, it may subsequently be invalidated if the requisite human contribution is lacking.  Accordingly, companies using AI in research and development should clearly identify and document the contributions made by human inventors, including defining the technical problem, selecting, modifying, and verifying AI-generated outputs, and further developing those outputs through experimentation.

Maintaining Records Supporting Human Contribution

A particularly noteworthy aspect of the Guide concerns the importance of maintaining evidence of human contribution to AI-assisted inventions.  If the examiner has reason to question whether a named inventor qualifies as an inventor, the examiner may issue an Office Action requesting supporting documents, such as research and development records or an inventor declaration, demonstrating the inventor’s contribution to the inventive process.  Since it may be difficult to establish evidence of human contribution retrospectively when preparing a patent application, companies are advised to maintain contemporaneous records documenting how AI was used, as well as technical judgments and contributions made by human researchers throughout the research and development process.

Verification of AI-Generated Outputs

Verification of AI-generated outputs is also critical. The Guide cautions that AI hallucinations may produce nonexistent technical information or suggest technical effects that do not actually exist.   Accordingly, applicants and their representatives should carefully verify the accuracy and reliability of information included in patent documents, including specifications and arguments submitted during prosecution, and ensure that the disclosed invention can be carried out as described.   In particular, if AI-generated test results or predictions of technical effects are included in a patent application without sufficient verification, the application may be rejected for failure to satisfy the enablement requirement or on other grounds, and any resulting patent may subsequently be invalidated.  Furthermore, if unverified AI-generated experimental results are misrepresented as actual test results and a patent is thereby granted on the basis of such false representations, liability under the Patent Act for obtaining a patent by fraudulent means may also arise.

Practical Implications for Foreign Companies

The Guide provides specific guidance for foreign companies seeking patent protection in Korea for AI-assisted inventions. From the research and development stage, companies should maintain contemporaneous records documenting the inventive contribution made by human researchers, how AI was used, and how AI-generated outputs were selected, modified, and verified.  They should also ensure the accuracy and reproducibility of AI-generated technical information and experimental data.  Maintaining such records may help applicants demonstrate substantial human contribution during patent examination and reduce the risk of issues relating to inventorship and compliance with the disclosure requirements under Korean patent law.