AI as an Inventor of Patents? IP High Court Judgment and the 2025 IP Strategic Program

In January 2025, the Intellectual Property High Court (IPHC) of Japan, in a landmark ruling, substantially rejected the recognition of generative AI DABUS as an inventor under the patent system (Judgment of 30 January 2025, IPHC, Reiwa 6 [2024] Gyo-Ko No. 10006). The nature of this case was merely a dispute of formality regarding the indication of the inventor on a patent application.  But the judgment carefully examined the current text of the Patent Act to think substantially who should qualify as an inventor in current Japanese law.

Following this judgment, Japan’s Cabinet Office published the Intellectual Property Strategic Program 2025 (2025 IPSP) addressing a wide range of issues in intellectual property policymaking.  It outlines key discussion points regarding inventorship and the qualification generative AI as a patent applicant, and proposes prompt legislative responses.  Recognizing the impact of this issue on Japan’s competitiveness in the global AI race, the 2025 IPSP highlights Japan’s commitment to taking a proactive role in international intellectual property frameworks.

１．Debate Over Generative AI Inventorship in the DABUS case

DABUS is a generative AI developed by Dr. Stephan Thaler of the Artificial Inventor Project. Dr. Thaler initiated a series of international patent applications to the EPO, UKIPO, USPTO, Japan Patent Office (JPO), Australian IPO, etc., via PCT (PCT/IB2019/057809).  In these patent applications, DABUS was indicated as an inventor because Dr. Thaler asserted that the generative AI itself could be the source of new and distinctive technical ideas at the same level as a natural person. However, the right to be patentee should be subject only to the owner of DABUS, who is Dr. Thaler, due to the lack of legal qualification/integrity of DABUS to be a patent rights holder.

JPO recognized the aforementioned patent application in their localization procedure in 2020 (JPO Toku-Gan 2020-543051).  An inventor was described as DABUS in this JPO procedure. Despite the JPO’s order to correct such a description of the inventor due to a legal interpretation of “name of inventor” under Art.36, Para.1, Sub-para.2, such correction was not made. The patent application was rejected by the JPO. The patent applicant filed a request for an administrative appeal but was rejected by the Administrative Appeals Board (20221003 Gyo-Fuku Tokkyo 1).  Then the patent applicant finally filed a lawsuit to seek revocation of the JPO’s rejection order at the Tokyo District Court.  However, the Tokyo District Court again rejected the patent applicant’s assertion of DABUS as the inventor and affirmed that the JPO’s rejection was not erroneous (Judgement of May 16, Reiwa 6 [2024], Tokyo D. Ct.) because an invention should be subject to a human being’s creative activity (Art.2, Para.1 of the Intellectual Property Basic Act), and a “name” literally means a natural person’s name (Art.36, Para.1, Sub-paras.1 and 2 of Patent Act).  The judgement also pointed out how inconvenient it is to find a legal foundation of an inventor, a “person skilled in the art” (Art.29, Para.2 of the Patent Act), an appropriate patent term, etc., in the current intellectual property system, if a generative AI itself became an inventor.

The patent applicant appealed this case to the IPHC. However, the IPHC supported the Tokyo District Court’s judgment.  The IPHC considered that the “name” of an inventor means a natural person under Art.29, Para.1 of the Patent Act.  They affirmed that this interpretation aligns with the concept of an “employee,” etc., in the context of employee inventions under Art.35, Para.1 of the Act, and is reasonable for granting a patent right to a natural person who has the legal capacity to be a patentee.  The Court also rejected the patent applicant’s assertion to obtain the right to be a patentee for Dr. Thaler because DABUS was not a tangible subject that could be possessed and owned by Dr. Thaler, even under the right to acquire fruits as outlined in Arts. 88 and 89, Para.1, Art.189, Para.1, and Arts.205 and 206 of the Civil Code.  Finally, the IPHC emphasized the importance of policymakers engaging in careful legislative discussions regarding the pros and cons of accepting generative AI as an inventor, considering various viewpoints on international harmonization and Japan’s industrial developments.

2. The 2025 IPSP adopts a progressive stance while carefully calling for further discussion

Reflecting these developments in the DABUS case, the Act on Promotion of Research and Development and Utilization of AI-related Technology was enacted by the Diet on May 28 and promulgated on June 4, 2025.  In conjunction with this AI Act, the Digital Agency issued guidelines for the government’s procurement and use of generative AI, aiming to drive innovation and evolution in public administration.

In June 2025, the 2025 IPSP, outlining a wide range of goals and plans for the development of intellectual property to support the national economy, was published.  Among the key issues, it particularly addressed inventorship by generative AI, which has emerged as a critical topic.

The 2025 IPSP echoes pro-AI policies, especially regarding the qualification of inventorship in patents created with the assistance of generative AI.  It does not categorically deny the capacity of generative AI to be credited as an inventor.  Instead, it explores whether such inventorship could be recognized based on the AI’s ability to set an agenda, select solutions, and evaluate effectiveness in the invention process.

The 2025 IPSP also emphasizes that inventions developed using generative AI often involve various human actors—such as developers of the AI system who handle tasks like training data selection and fine-tuning, prompt engineers, and reviewers of AI outputs—all of whom may be considered candidates for inventors.  Therefore, the 2025 IPSP calls for thoughtful and careful discussion on this complex issue, noting that social implementation and ownership of patent rights must be considered.

To advance the debate, the 2025 IPSP encourages the Patent System Subcommittee of the Intellectual Property Division under the Industrial Structure Council (PSS-ISC-IPD) to present their conclusions.  The PSS-ISC-IPD has identified several key issues for discussion, including: (i) applicability of inventions, (ii) inventorship, and (iii) eligibility of cited and referenced inventions while it acknowledged the possibility of joint inventorship/patent applicant qualification—an issue flagged by the 2025 IPSP.  It also plans to conduct scenario analyses to assess the implications if generative AI were to be recognized as an inventor.