The Illusory Standard of Significant Human Contribution to AI-Assisted Inventions after the DABUS Decision of the German Federal Court of Justice

Abstract This analysis shows that the decision of the German Federal Court of Justice in the DABUS case provides for a surface-level approach to the much-debated issue of inventorship in the context of artificial intelligence (AI) applications. While the Court accepted the additional information concerning the invention’s genesis on the inventor designation form as being in conformity with the existing (procedural) law, it disregarded the substance of this information, which prima facie raises doubts as to whether the designated natural person is indeed the inventor, particularly given the highly contentious circumstances of Thaler’s case. Although the Court upheld the merit-based notion of inventorship and the sufficient contribution requirement, its formalistic treatment of the inventor designation – such that “any human would do” – risks reducing the inventor designation to a legal fiction, allowing trivial human involvement to qualify as inventorship, especially in cases where unjustifiable claims are unlikely to be contested. The pending legal question left unanswered by the Court is: Under what conditions can, and should, a human using AI in the inventive process fulfil the requirement of sufficient contribution to merit the title of inventor, and how should the rules on inventor designation be applied to safeguard their ratio legis ? The decision can be read as encouraging innovators to apply AI in technical problem-solving, leading to potentially patentable inventions, as it ensures that the contribution of AI to finding a technical teaching – regardless of how substantial it might be – would not preclude granting a patent to a natural person. This suggests that the Court prioritised the potential patentability of AI-assisted inventions over the merit-based justification for inventorship.