The “Device for the Autonomous Bootstrapping of Unified Sentience”, abbreviated to “DABUS”, is an artificial intelligence (AI) system developed by its inventor, Stephen Thaler. Under the “Artificial Inventor Project,” which includes a series of pro bono legal testcases seeking IP rights for AI-generated output in the absence of a traditional human inventor or author, Thaler filed a Patent Cooperation Treaty (PCT)application, which listed DABUS as the sole inventor.
The inventions at issue included purported claims of a “fractal-structured food container” and a “lamp or light-emitting device producing enhanced attention effect”, that had been generated autonomously by DABUS without any human intervention. In March 2020, the international application entered the Korean national phase.
During the preliminary scrutiny, the Korea Intellectual Property Office (KIPO) requested that the artificial inventor name “DABUS” be replaced with a natural person. The request was not complied with, consequent to which the KIPO refused the patent grant and issued a formal order of “nullification” of the application.
The reason for KIPO’s decision was that only a natural person could be an inventor under relevant statutory provisions. Hence, DABUS, a non-human, AI-based system did not qualify.
The applicant, Stephen Thaler challenged the nullification decision.
In June 2023, the Seoul Administrative Court dismissed the applicant’s administrative lawsuit in Stephen L. Thaler v. Commissioner of the Korea Intellectual Property Office (2023)[1].
The court ruled various patent law provisions reinforce the reasonable conclusion that only a natural person, and not a machine lacking legal personality, is capable of invention. Regarding the claimed “inventions, ”the court reasoned that the statutory concept of “invention” as a creative or technical idea envisages a human mental process.
The court further observed that DABUS evidently did not meet the threshold of artificial intelligence with autonomous creativity and inventiveness beyond human-guided learning. Given substantial human involvement in the process, such as, data preparation, post-processing, specification drafting, etc., granting inventorship to AI departs from the fundamental premises of the Patent Act.
In essence, the court of first instance dismissed the suit holding that under the Korean Patent Act (KPA)— in particular, Article33(1)— only natural person(s) “who make(s) an invention”, and their successor(s), is/are entitled to the patent.
On appeal, the appellate-plaintiff asserted that there is no legitimate basis for the interpretation that inventors are restricted to natural persons and that the legislative loophole should be resolved through a reasonable interpretation of the provisions. It was argued that despite lacking legal capacity, AI can be recognized as an inventor, and the rights and liabilities for the invention can be attributed to the owner or operator of the AI invention.
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In May 2024, the Seoul High Court dismissed the appeal and upheld the decision of the court of first instance. The High Court explicitly stated that under extant laws, it is beyond legitimate interpretation to treat AI as an inventor. Additionally, attributing relevant rights and liabilities to the owner of AI, lacks any basis and is incompatible with the current patent law system. It also observed that for protecting AI-based inventions, legislative reform based on societal discussion is necessary.
Significance and Legal Implications
The DABUS case confirms that under the current KPA, only a natural person qualifies as an inventor. The Seoul High Court’s decision reaffirmed the “human-inventor” requirement for patentability in Korea. Courts and KIPO interpret statutory provisions strictly in this regard.
Further, it follows that existing Korean patent laws do not recognize AI-generated invention. The decision reflects the view that “invention” presupposes human mental activity—hence, AI-conceived inventions do not satisfy the conceptual foundations of the Act.
The high court did flag the inadequacy of laws for protecting AI-generated inventions. It also acknowledged that, as AI capabilities evolve, there may eventually be social and industrial interest in protecting such AI-driven inventions—but that would require legislative change, not judicial reinterpretation.
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[1] 2023 Nu 52088, Judgment Dated 16.05.2024 of the Seoul High Court
