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Abstract

The judgment of the German Federal Patent Court (Bundespatentgericht) in the Food container case1 holds a unique place in the worldwide series of DABUS2 cases. On the one hand, it confirmed that an artificial intelligence (AI) system cannot be regarded as an inventor under patent law, which has so far been a dominant trend in other jurisdictions concerned with the matter.3 On the other hand, it allowed the applicant Stephen Thaler, who insisted on not having invented the food container, to be designated as the inventor in the patent application, thus, opening up an opportunity for him to become the patent owner. While the case outcome may appear as a constructive compromise, one may question the internal consistency of the court’s reasoning. This analysis shows that the judgment is paradoxical in that, by allowing Thaler to be deemed the inventor of the food container, it contradicts the very principle of human creativity underlying the inventor’s (moral) right to be named – the principle that was relied upon by the adjudicating Board when denying the designation of DABUS as the inventor.