3 On 21 December 2019, the European Patent Office (EPO) announced its refusal to examine two patent applications, designating an AI system DABUS as the inventor, on the formal ground of failure to fulfil the requirement of the European Patent Convention that ‘an inventor designated in the application has to be a human being, not a machine’.

The debate surrounding ‘AI-generated’ inventions continues to build momentum, reaching the agenda of policymakers at the international level 2 as well as prompting numerous scholarly inquiries. ‘The real danger of artificial intelligence is not that computers are smarter than us, but that we think are.’ 1 I. Ultimately, the article calls for a broader technical inquiry that would elucidate the relevance of the currently debated normative concerns over ‘non-human inventorship’ against the background of the technological state of the art. Accordingly, it is argued that, as long as computers rely on instructions defined by a human as to how solve a problem, the separation between human and non-human (algorithmic) ingenuity is, in itself, artificial. Further, it clarifies that the types of AI that have been most debated in the patent law literature ‒ artificial neural networks and evolutionary algorithms ‒ essentially require detailed instructions that determine how the relation between inputs and outputs is derived through computation. It emphasises that such methods should not be equated with a computer’s ‘cognitive autonomy’. Most uncertain is how AI ‘autonomously generates’ inventions, and in what way 'AI-generated' inventions differ from inventions developed with the aid of AI.ĭrawing on the extensive literature review, this article depicts AI techniques as methods of computational problem solving. While there is a general consensus that such inventions are incompatible with the concept of human inventorship, it remains largely unclear to what extent concerns regarding ‘non-human’ ingenuity can be justified. This article attempts to clarify the notion of an ‘AI-generated’ invention, an issue which has triggered an intense debate on the future of patent law and policy.

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