INTRODUCTION
While the development of AI can be traced back to the 1950s, it entered mainstream public consciousness only in 2022, when ChatGPT, developed by OpenAI, gained widespread public attention.[1] Since then, artificial intelligence has experienced rapid and sustained growth. It has also seen significant advancements in its capability and adoption. These developments have raised complex legal and ethical questions. Among all these questions, a persistent unresolved issue lies within the field of intellectual property rights. The landmark judgment in Thaler v. Vidal[2] has reignited the debate on whether AI systems can be granted patent rights.
WHAT ARE PATENT RIGHTS?
According to the World Intellectual Property Organisation, “A patent is an exclusive right granted for an invention”.[3] It provides legal protection to inventors. It also benefits society by enabling public access to technical information, thereby accelerating innovation.[4]
Historically, these rights have been granted exclusively to humans. However, advancing artificial intelligence technologies has created a scenario where there are claims that AI systems should be recognised as inventors. At the same time, most legislation worldwide recognises patent rights only for human inventors, thereby creating a growing dilemma as to whether patent rights should be granted to AI.
THE LANDMARK JUDGMENT OF THALER VS VIDAL
Thaler developed an Artificial Intelligence system known as the Device for the Autonomous Bootstrapping of Unified Science (DABUS), which he claimed generated patentable inventions. In July 2019, he filed patent applications for two inventions allegedly generated by DABUS with the PTO: U.S. Application Nos. 16/524,350 (teaching a “Neural Flame”) and 16/524,532 (teaching a “Fractal Container”). He also submitted all required supporting documents with the applications, such as a sworn oath or declaration. USPTO concluded that there was no valid inventor, thereby rejecting the patent applications.
Thaler filed for judicial review of the USPTO’s decisions under the Administrative Procedure Act (APA), and both parties agreed to adjudication before the District Court. Upon his application, the District Court held that an “inventor” under the Patent Act must be an “individual”, which, according to the statute, refers to a natural person, thereby refusing to recognise DABUS as an inventor. The United States Court of Appeals for the Federal Circuit reaffirmed the lower court’s decision. Following the U.S. Supreme Court’s denial of certiorari, the Federal Circuit’s decision stands.[5]
Similar matters filed in the jurisdiction of the European Patent Office (EPO), the Swiss Federal Administrative Court, and the United Kingdom Intellectual Property Office (UKIPO) received an adverse decision, thereby refusing to recognise patent rights for AI. Swiss Federal Supreme Court, however, accepted Dr. Thaler as the inventor, considering his role in recognition of the output as a technical solution to be sufficient.[6]
U.S. PATENT AND TRADEMARK OFFICE (USPTO) INVENTORSHIP GUIDANCE FOR AI-ASSISTED INVENTIONS
February 2024 Guidance:
- Patent applications and patents cannot be granted to an entity that is not a natural person, i.e., AI cannot be recognised as an inventor or joint inventor. However, a patent may be granted to a natural person who has made a significant contribution to the invention.
- The Pannu factors are applied to determine inventorship where a patent is sought, whether developed by a single inventor or multiple inventors using AI. It serves as the primary test for determining contribution.
- It also laid down five guiding principles to guide the application of the Pannu test in cases of AI-assisted inventions.[7]
November 2025 Guidance:
- It recognised the role of the Pannu factors in determining ‘significant contribution’ only for natural co-inventors and discarded its earlier approach in the case of AI-assisted inventions.
- It recognised the role of AI in the field of invention as a tool and characterised AI as ‘analogous to laboratory equipment, computer software, research databases, or any other tool that assists in the inventive process’.[8]
- The USPTO emphasises that “the touchstone of inventorship” is “conception,” or “the formation in the mind of the inventor, of a definite and permanent idea of the complete and operative invention, as it is hereafter to be applied in practice.” Thereby, thereby rejecting AI’s capability of ‘conception’.[9]
Hence, the US jurisdiction recognises the patent rights of only a ‘natural person’ and treats AI as a tool that supplements the inventor in the invention process.
RESPONSES BY OTHER JURISDICTIONS
Europe: The European Patent Office (EPO) and the UK Intellectual Property Office (UKIPO) have held that an inventor must be a legal person (i.e., a natural person).” The EPO has, however, acknowledged the increasing role of AI in innovation and has initiated public consultations to assess potential future regulatory changes.[10]
Singapore: Singapore has adopted a more proactive regulatory approach. The Intellectual Property Office of Singapore (IPOS) has recently issued Supplemental Guidance for the Examination of Artificial Intelligence (AI), which provides criteria for patentability of AI-related inventions where the invention addresses a specific technical problem, and the method’s steps are functionally linked to solving that problem. However, the contribution of AI should not be too abstract or non-technical.[11]
China: The China National Intellectual Property Administration (CNIPA) has issued Order No. 84 for the amendment of the guidelines for patent examination, which has become effective from 1 January 2026. According to this amendment, an AI invention that uses unlawful data, algorithmic discrimination, or is against public interest will not be granted patents. For AI-related inventions to be patentable, they must demonstrate more than mere application of existing technical solutions to new scenarios. Applications seeking patent grants must provide detailed technical disclosure of AI models, training processes, and data relationships.[12]
South Africa: It was the first country to grant a patent for an AI-generated invention (DABUS). However, a detailed regulatory framework on AI inventorship is still awaited.
Australia: Initially, in July 2021, a single judge bench of the Federal Court in Thaler v Commissioner of Patents[13] held that an AI can be granted patent rights under the Patents Act. However, the decision was overruled by the higher bench, where it was held that only a ‘natural person’ can be granted the patent rights.[14]
CONCLUSION
Artificial Intelligence continues to raise critical questions that require timely resolution. One such question concerns patent law, specifically whether AI should be granted patent rights. This question is based on the general understanding that what is required for an invention is ‘conception’, which is unique to a ‘natural person’, and AI cannot take its place. Further, the question could be raised about the extent of AI assistance that would be required to grant it exclusive patent rights.
Where we are faced with these increasing dilemmas, different jurisdictions have adopted distinct approaches to this issue, thereby creating a need for consensus and developing a regulatory framework that can guide national patent legislation.
Author’s Name: Gunjan Agarwal (Vivekananda Institute of Professional Studies-Technical Campus, GGSIPU, Delhi)
References:
[1] ‘ChatGPT Released by OpenAI’(History.com, 30 November 2022) <https://www.history.com/this-day-in-history/november-30/chatgpt-released-openai> accessed 9 January 2026
[2] Thaler v. Vidal, 43 F.4th 1207 (Fed. Cir. 2022)
[3] World Intellectual Property Organization, ‘Patents’ (WIPO) <http://wipo.int/en/web/patents#:~:text=A%20patent%20is%20an%20exclusive%20right%20granted,about%20these%20inventions%2C%20and%20thus%20accelerating%20innovation> accessed 9 January 2026
[4] Ibid
[5] Thaler v Vidal (United States Court of Appeals for the Federal Circuit, 5 August 2022) <https://www.bitlaw.com/source/cases/patent/Thaler.html> accessed 12 January 2026
[6] Lenz & Staehelin, ‘AI cannot be an inventor – Swiss Court clarifies status of AI-generated inventions in patent law’ (Lexology, 15 July 2025) <https://www.lexology.com/library/detail.aspx?g=35483225-6e1f-4f94-91b0-85aa706580eb> accessed 12 January 2026
[7] United States Patent and Trademark Office, ‘Inventorship Guidance for AI-Assisted Inventions’ (March 2024) <https://www.uspto.gov/sites/default/files/documents/inventorship-guidance-for-ai-assisted-inventions.pdf> accessed 12 January 2026
[8] United States Patent and Trademark Office, ‘Revised Inventorship Guidance for AI-Assisted Inventions’ (28 November 2025) 90 Fed Reg 54636
[9] Jayashree Mitra, ‘USPTO’s AI Inventorship Guidance Charts New Path Forward for AI-Assisted Inventions’ (Carlton Fields, 4 December 2025) <https://www.carltonfields.com/insights/publications/2025/uspto-ai-inventorship-guidance-charts-new-path-forward-for-ai-assisted-inventions> accessed 12 January 2026
[10] ‘Can AI Be an Inventor? The Debate Around AI-Generated Inventions’ (Drew & Napier LLC, 21 October 2025) <https://www.drewnapier.com/Publications/Can-AI-Be-an-Inventor-The-Debate-Around-AI-Generat> accessed 12 January 2026
[11] Intellectual Property Office of Singapore, ‘Guides’ (Patents, last updated 25 March 2025) <https://www.ipos.gov.sg/about-ip/patents/guides/> accessed 12 January 2026
[12] Mathys & Squire LLP, ‘China Raises the Bar for AI Patents: What Changes from 1 January 2026’ (Lexology, 30 December 2025) <https://www.lexology.com/library/detail.aspx?g=374c8d1b-30c6-4d5c-9cda-b75537a98427> accessed 12 January 2026
[13] Thaler v Commissioner of Patents [2021] FCA 879
[14] Herbert Smith Freehills Kramer, ‘It’s Just Human Nature: AI Cannot be a Patent Inventor in Australia’ (HSF Kramer, April 2022) <https://www.hsfkramer.com/insights/2022-04/it%E2%80%99s-just-human-nature-ai-cannot-be-a-patent-inventor-in-australia> accessed 12 January 2026
