By mimicking human thinking, cognition, learning, and computation, artificial intelligence (AI) can perform specific tasks, including completing specific research with development outcomes. Whether an AI system can be considered the inventor of a Taiwanese patent has been widely discussed in the legal profession in recent years. To this question, the Supreme Administrative Court says “no” in its decision Shang Zi No. 55 of 2022.
In this case, the applicant listed an AI as the inventor in the patent application. After informing the applicant in writing that the patent application was incomplete because no human inventor was listed and requiring the applicant to submit a human inventor, the Taiwan Intellectual Property Office (TIPO) issued an administrative order refusing the patent application because the applicant has still failed to submit a human inventor within the time limit set. Dissatisfied with the administrative decision that had been issued, the applicant then lodged an administrative complaint. After the Department of Commerce issued a negative administrative appeal decision against the applicant’s interests, the applicant subsequently initiated an administrative dispute before the Intellectual Property and Commerce Court (IPCC).
The IPCC made its first procedural decision of the case in the Xing Zhuan Su Zi decision No. 3 of 2021. According to the IPCC, “Creation is a collective term for the fruits of human intellectual activity, which can be protected with different types of rights depending on the content and nature of the creation . With regard to the right of attribution, Sections 16, 31 and 83 of the Enforcement Regulations of the Patent Act also provide that the application form for a patent application must state the name and nationality of an inventor, a utility model creator or a designer. Even if the patent application is disclosed and the patent is published by TIPO, the preceding name and nationality must be listed in the Patent Application Publication Bulletin and the Patent Bulletin, respectively. According to the provisions of the relevant laws and regulations in Taiwan, the inventor must be not only a person who has made significant contributions to the technical features of the patent application, but also a natural person. Since an artificial intelligence system is considered a “thing” under Taiwanese law, it is considered an object of rights rather than a subject of rights and is therefore not entitled to enjoy legal capacity and natural personality.”
The Supreme Administrative Court (SAC) confirmed the previous IPCC opinions and further pointed out that an inventor’s right to be named is a personality right, i.e. the inventor must be a natural person, which corresponds to the legislative intent of the Patent Act and related regulations. If the application documents name an item as the inventor who is not a natural person, the application is deemed not to conform to the legal forms and procedures, but it can still make a correction in this regard. The Specific Patent Agency requests the applicant to submit the corrected application documents within a specified time limit. If the applicant fails to do so or if the documents are still not completely filled out, the application is to be rejected in accordance with Section 17 of the Patent Act.
The SAC and the IPCC currently share the same position on this issue, but it remains to be seen whether the judiciary will change its mind if a breakthrough in the use of artificial intelligence is made in the future.
