Japan's Intellectual Property High Court holds that only a natural person can be named as inventor

2025-01-30Japan

Intellectual Property High Court (Second Division), judgment of January 30, 2025, 2024 (Gyo-Ko) 10006 (Shimizu, presiding, Kikuchi and Rai, JJ.), dismissing the appeal from Tokyo District Court, 2023 (Gyo-U) 5001 (May 16, 2024)

Japanese Patent Application No. 2020-543051 entered Japan from an international application naming as inventor "DABUS, the artificial intelligence that autonomously made the present invention." Article 184-5(1) of the Patent Act requires the national document filed on entry to state the inventor's name and domicile or residence; when the applicant did not amend, the Commissioner of the Japan Patent Office dismissed the application under Article 184-5(3). The Tokyo District Court upheld the dismissal, and the Second Division of the Intellectual Property High Court dismissed the appeal. The court reasoned that Article 29(1) grants a patent to a person who invents, that the employee-invention provision of Article 35(3) presupposes a natural-person inventor, and that Articles 36(1)(ii) and 66(3)(iii) require the inventor's full name, a term used for natural persons. The patent-granting framework of the Act therefore applies only to inventions made by natural persons, no patent may be granted under the current Act for an invention made by artificial intelligence, and the inventor's name is a mandatory entry. The court rejected the argument that the name is optional where no inventor's moral right arises, because that argument assumed patents may issue for machine-made inventions, and left open whether machine output can be an invention. It said that whether to grant patents for such inventions "is an issue that requires a discussion for legislation" and is difficult to resolve by interpreting existing law.

What it changesWith this judgment the Federal Circuit, the United Kingdom Supreme Court, the German Federal Court of Justice, the Full Federal Court of Australia, the Legal Board of Appeal of the European Patent Office and now Japan's Intellectual Property High Court have each held that the inventor must be a natural person. The inventorship section of the invention disclosure form can follow one standard for the whole program: a named human for every claim, and no system named as inventor. Japan adds a procedural point. The defect surfaces at national phase entry, when the national document must state the inventor's name, and an application whose applicant will not supply a human name is dismissed rather than examined, so the human inventor has to be settled before the international application is filed, not at the thirty-month deadline. The court left any change to the Diet, and no filing budget should assume that Japan will protect an invention attributed to a machine.

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