AI and Intellectual Property — Who Owns an AI-Generated Invention?

The DABUS Problem — When AI is Listed as an Inventor

In 2021, the world watched as Stephen Thaler tried to patent inventions created by his AI system DABUS in multiple countries — listing the AI itself as the inventor. Every country rejected the applications. The United Kingdom Supreme Court ruled that only a human can be an inventor under existing patent law. India's position is the same.

The Indian Patents Act, 1970 defines an inventor as a "person" — and in Indian law, a person means a human being or a legal entity like a company. An AI system is neither. This means that as of today, AI cannot be named as an inventor on an Indian patent application.

Who Can Own an AI-Generated Patent?

Even if AI created the invention, a human must be named as the inventor. The question is — which human? Here are the main scenarios:

• The developer of the AI system — if the invention directly results from the AI's designed purpose
• The user of the AI — if the user provided specific inputs, directed the process and made creative decisions
• The company — if the AI was developed as part of employment, the employer typically owns the IP

The critical legal question is: did a human make a genuine inventive contribution? Simply pressing a button and accepting AI output may not be enough. Courts are likely to require evidence of human creative direction.

AI and Copyright in India

The Copyright Act, 1957 also requires a human author. However, Section 2(d) of the Act has an interesting provision for "computer-generated works" — it defines the author as the person who caused the work to be created.

This means that if you use an AI tool to generate a design, image or written work and you directed the process, you may be considered the author under Indian copyright law. This is currently untested in Indian courts, but the provision offers some protection.

What the Indian Patent Office Says

The Indian Patent Office has not yet issued specific guidelines on AI-generated inventions. However, the Office of the Controller General of Patents, Designs & Trade Marks has been actively updating its guidelines, and AI-specific rules are expected to follow global developments.

Globally, the trend is clear: human inventors must be named, but AI tools can be used as part of the inventive process as long as a human made a genuine creative contribution.

Practical Advice for Startups Using AI

• Always document your human creative contribution when using AI tools to develop inventions
• Keep records of prompts, iterations and decisions you made during the AI-assisted creative process
• Have clear employment and contractor agreements that assign IP ownership to your company
• File patents for AI-assisted inventions early — the law is evolving and early filers have an advantage
• Consult a registered Patent Agent to assess patentability of AI-assisted inventions

The Road Ahead

India is actively participating in global discussions on AI and IP through WIPO's conversations on AI and IP policy. The next few years are likely to bring new guidelines, if not new legislation, on this issue. Startups building AI products should stay informed and build strong IP documentation practices now.