The soul of inventorship in the patent system

Garry A. Gabison

Chapter 3 in A Modern Guide to Patents, 2025, pp 66-90 from Edward Elgar Publishing

Abstract: The human inventorship requirement in patent applications has its origin in mercantilism: governments around Europe were trying to attract the best craftsmen to their jurisdiction through the promise of exclusivity on their inventions; therefore, the patents were personal and required the inventor to be in residence in the jurisdiction to exercise such rights. While the residency requirement disappeared, the human inventorship requirement persisted. The rise of Artificial Intelligence (AI) has challenged the belief that only humans could be creative. Indirectly, this rise has challenged whether machine-generated inventions should receive the same protection as human-generated inventions. This chapter discusses whether legal theories support removing the human inventorship requirement, and investigates whether the incentive theory, personality theory, labor theory, and social planning theory – four common theories used to justify the existence of the intellectual property system – could justify a reform of the human inventorship requirement. This discussion finds that these theories provide little support to granting a right of attribution to AI machines.

Keywords: Inventions by AI; Patentability; Concept of ownership; Human inventorship requirement (search for similar items in EconPapers)
Date: 2025
ISBN: 9781035308590
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