Background

The DABUS patent applications have sparked a global debate over the role of artificial intelligence in patent law. DABUS – short for Device for the Autonomous Bootstrapping of Unified Sentience – is an AI system developed by Dr. Stephen Thaler, which is said to have autonomously generated two technical inventions: a novel food container and a flashing light device designed to attract attention in emergencies.
In an effort to test the boundaries of current legal frameworks, Dr. Thaler filed patent applications in multiple jurisdictions naming DABUS as the sole inventor. These applications were not primarily aimed at commercializing the inventions but instead intended to provoke legal discourse on whether an AI system can qualify as an inventor under existing patent laws. 
Patent offices in major jurisdictions – including the European Patent Office (EPO), the United States Patent and Trademark Office (USPTO), and the United Kingdom Intellectual Property Office (UKIPO) – have rejected the DABUS applications, reaffirming that inventorship under current law is restricted to natural persons. 
The decision of the Federal Administrative Court takes a stance in line with the prevailing international view: it declined to register DABUS as the inventor in the Swiss national patent application. However, it accepted to register Dr. Thaler as the inventor, considering his role in recognizing the output as a technical solution to be sufficient. The decision may be appealed to the Swiss Federal Supreme Court.

Three key findings of the Swiss Federal Administrative Court

1. AI systems cannot be recognized as inventors

The Court first addressed Dr. Thaler’s principal request that DABUS be designated as the inventor in the patent application. He argued in particular that the Swiss Patent Act (“PatA”) refers to the “inventor” but does not define this term and does not clearly require that the inventor be a human. The Court rejected this argument by reference to a detailed interpretation of the applicable legal provisions. The Court held – consistent with the prevailing academic literature – that only natural persons can be inventors, as inventorship inherently involves an act of intellectual creation.

Interestingly, the Court held that contemporary AI systems lack the necessary autonomy to engage in acts of intellectual creation. Specifically, they are not capable of independently identifying technical problems and generating solutions without human intervention. AI-generated inventions still require human contributions at various stages, such as training the system, supplying data, interpreting output, and ultimately recognizing a result as patentable. These human actors may have legitimate personality rights or commercial interests that justify their designation as (co-)inventors.

The Court therefore concluded that AI systems do not meet the criteria for inventorship under Swiss patent law. This approach aligns with the prevailing view in most jurisdictions that have ruled on the matter.

2. Every patent application must name an inventor

Dr. Thaler had alternatively requested that no inventor be named, arguing that if DABUS could not be named as an inventor and no human contributed to the invention, there was no need for an inventor designation.

The Court dismissed this argument as well, citing the clear wording of the statute, requiring every patent application to name at least one inventor. Applications without an inventor designation are deemed inadmissible.

3. The user of the AI system may qualify as inventor

In the last part of the judgment, the Court considered Dr. Thaler’s subsidiary request – that he be named as the inventor, despite his earlier claim that the invention was autonomously generated by DABUS. The Federal Institute of Intellectual Property previously rejected this argument, taking the view that mere ownership of the AI system does not constitute a sufficient contribution to qualify as an inventor.

The Court held that a natural person who meaningfully contributes to the inventive process through activities such as training the AI, providing input, and recognizing the output as a technical solution may qualify as an inventor under Swiss law. The Court found that Dr. Thaler had played a sufficient role: he trained DABUS, provided data, received the generated output, and determined that the result was patentable. Consequently, the Court concluded that Dr. Thaler should be considered the inventor.

Importantly, the Court left open the precise threshold of human involvement required to establish inventorship in future cases. Nevertheless it indicated that scenarios in which a person makes multiple meaningful contributions to the data processing chain of an AI system are likely to support a finding of inventorship.

Outlook

• Legal certainty for AI-assisted inventions: The ruling confirms that inventions created with the assistance of AI systems are patentable under Swiss law – provided that a natural person is named as the inventor.
• No inventorship for AI (yet?): The Court made it clear that current AI systems do not meet the legal and cognitive standards to qualify as inventors. This position may evolve as AI capabilities progress and if the legislator decides to update the statute.
• Switzerland in line with global practice: The decision aligns Switzerland with the majority of jurisdictions (including the EU, UK, US, Germany, and Australia) that have ruled against recognizing AI as an inventor.

Practical implications

• Compliance with naming requirements: All patent applications must now clearly identify at least one natural person as the inventor. This is essential for ensuring that the application meets the legal requirements and is not rejected on procedural grounds.
• Documentation of Human Contribution: For inventions that involve AI, it is crucial to document the specific contributions made by human users. This documentation should clearly demonstrate in particular how the human user identified technical problems, conceptualized solutions, and directed the AI system’s activities.
• Strategic Considerations: Companies and inventors should consider the role of AI in their inventive processes. While AI can enhance creativity and efficiency, the human element remains critical to obtain patent protection under the current law.

Please do not hesitate to contact us in case of any questions.

Legal Note: The information contained in this Smart Insight newsletter is of general nature and does not constitute legal advice.