Yes, you can patent an invention developed with artificial intelligence at the European Patent Office (EPO), but the inventor you designate must be a human being, and the designation must say so without contradiction. On 5 February 2026, in T 528/25, an EPO Board of Appeal confirmed that a human inventor named on the form, then undercut by statements that the AI conceived the invention, is not a valid designation. For any AI inventor patent EPO filing, the inventor form now deserves as much care as the claims. This guide is for R&D teams, start-ups and in-house counsel who use AI tools in research.
Key takeaways
- Every European patent application must designate an inventor who is a natural person (Article 81 EPC and decision J 8/20).
- AI-assisted inventions are not excluded from protection: novelty and inventive step are assessed as for any other invention.
- In T 528/25 the Board required a designation that is clear and consistent; an addendum saying the machine conceived the invention undid the naming of a human inventor.
- A missing or invalid designation leads to refusal if it is not remedied within 16 months of the filing or priority date (Rule 60(1) EPC).
- A clean fallback request must be filed early: the Board refused to admit one first filed on appeal.
What did the EPO decide in T 528/25?
The case concerns European application EP 21 216 024.6, a divisional of EP 18 275 163.6 filed on 17 October 2018 by Stephen Thaler for a food container. In the parent application, Thaler had named the AI system “DABUS” as inventor. The Legal Board of Appeal rejected that in J 8/20 (21 December 2021), whose catchword is that a machine is not an inventor within the meaning of the European Patent Convention (EPC).
In the divisional, Thaler named himself on EPO Form 1002 (the separate designation of inventor) but attached an addendum stating that DABUS conceived the invention and that he was not an inventor “under traditional criteria”. The Examining Division refused the application on 25 November 2024. Technical Board of Appeal 3.2.07 dismissed the appeal on 5 February 2026. Each request failed for a reason worth knowing:
| Request | What was filed | Board’s finding |
|---|---|---|
| Main request | Thaler on Form 1002, plus an addendum and a note in the description saying DABUS conceived the invention autonomously | Contradictory: it could not be established who was designated |
| Auxiliary requests 1 and 2 | Same form; addendum saying Thaler “caused” DABUS to conceive the invention | Still contradictory: the machine is presented as having conceived the invention and identified its novelty |
| Auxiliary request 3 | Form 1002 with the German wording accepted by Germany’s Federal Court of Justice | Unclear: Form 1002 is meant for cases where the applicant is not the sole inventor |
| Auxiliary request 4 | Thaler alone, no addendum, filed in January 2026 | Not admitted: it could and should have been filed before the Examining Division |
Can an AI-assisted invention be patented at the EPO?
Yes. The Board recalled that Article 52(1) EPC protects any invention that is new, industrially applicable and inventive, and that J 8/20 had already said how an invention was made plays no role. It then reasoned that developing an invention with AI still requires human input, so one or more natural persons with a causal contribution can in principle be identified and designated (reasons 1.5 and 1.6).
The Board aligned itself with two national decisions on the same family. Germany’s Federal Court of Justice (X ZB 5/22, 11 June 2024) held that a human contribution which significantly influenced the overall result is enough, whatever its type or intensity. The Swiss Federal Administrative Court (B-2532/2024, 26 June 2025) accepted Thaler as inventor because he provided data, trained DABUS and recognised the output as an invention. Courts in the UK, the US, Australia, New Zealand and South Korea, cited in the decision, have all refused a machine as inventor.
One limit matters in practice: the Board expressly did not decide what kind of human contribution is sufficient (reasons 3.2). Under Rule 19(2) EPC the EPO does not verify the accuracy of the designation, so that assessment, and the risk if it is wrong, stays with the applicant.
How should you designate the inventor of an AI-assisted invention?
Under Article 81 EPC and Rule 19(1) EPC, the designation must give each inventor’s family name, given names, country and place of residence. If the applicant is not the inventor, or not the sole inventor, it must also state the origin of the right to the patent, such as an employment relationship or an assignment “by agreement dated…” (EPO Guidelines, A-III, 5.3). A practical sequence:
- Identify the people who made a causal contribution: who framed the technical problem, chose the data and the model, set the parameters, selected and tested the output and recognised it as an invention.
- Record that contribution internally, with dates, before filing. It is your evidence if inventorship or entitlement is challenged later.
- Name those people on the request for grant or on Form 1002, with a correct statement of the origin of the right.
- Do not add statements that the AI conceived the invention or that the named person is not really the inventor. The Board objected not to mentioning AI, but to statements that called the human designation into question.
- Use the same designation across the whole family: priority filing, PCT request, divisionals and national phases.
Deadlines and corrections for the designation of inventor
| Situation | Provision | What happens |
|---|---|---|
| Designation missing or deficient (direct European filing) | Rule 60(1) EPC | Must be remedied within 16 months of the filing or priority date; otherwise refusal, with further processing available |
| Euro-PCT application without a designation | Rule 163(1) EPC | The EPO invites the applicant to designate within two months |
| Incorrect inventor named | Rule 21(1) EPC | Rectification on request, with the consent of the wrongly designated person |
| New request filed late on appeal | Article 13(2) RPBA | Admitted only in exceptional circumstances, as T 528/25 shows |
Rectification under Rule 21 is designed for a wrong name, not for rescuing a designation the applicant itself made contradictory. The safer course is to get the wording right at filing.
What this means for your business
- Add an inventorship check to your invention disclosure process whenever AI tools are used in R&D.
- Review employment and contractor agreements so the origin of the right can be stated cleanly; under Article 60(1) EPC the right of an employee inventor follows the law of the State where they are mainly employed.
- If you file first in Spain or another European country and extend through the PCT (Patent Cooperation Treaty) to Latin America or Africa, fix the inventor narrative in the priority application. National laws differ and should be checked market by market.
- Keep disclosures about the AI tool factual and separate from the designation.
If you are building a portfolio around AI-driven research, our team for intellectual property in AI and digital assets can review your inventorship records before filing, and our European and PCT patent filing team can carry them consistently through each office.
Where companies get AI inventorship wrong
- Explaining too much in the inventor form. Addenda or description notes that credit the AI can turn a valid designation into a contradictory one.
- Naming whoever owns the AI tool by default. Ownership of a tool is not the test; the people whose contribution shaped the invention are.
- Telling different stories in different offices. A declaration filed elsewhere that contradicts the European designation invites challenges.
- Saving the clean request for the appeal. In T 528/25 the Examining Division twice invited a new request; the applicant declined, and the Board would not admit it later.
- Forgetting entitlement. A correct inventor with a defective statement of the origin of the right still leaves the application exposed.
Most of these problems arise when the R&D team, the patent attorney and the foreign associates each hold part of the story. A single coordinated file keeps the designation identical everywhere.
Frequently asked questions
Can an AI system be named as inventor on a European patent?
No. The EPO Guidelines state that the inventor must be a natural person, following decision J 8/20 of 21 December 2021. The EPO does not check whether the designation is accurate, but it does check that the designated inventor is a person. National courts in Germany, the UK, the US and other countries have reached the same conclusion.
Does using AI make an invention unpatentable at the EPO?
No. In T 528/25 the Board confirmed that the EPC does not rule out protection for inventions developed using AI. They must still be new, industrially applicable and inventive, and a natural person who made a causal contribution must be designated. What kind of contribution suffices was not decided, so it should be assessed case by case.
Should I mention the use of AI in my patent application?
Factual information about how an AI tool was used is not prohibited in itself, and J 8/20 accepted that applicants may add information not needed to carry out the invention. The risk lies in statements that deny the named person is the inventor or say the AI conceived the invention, which the Board treated as contradicting the designation.
Can IP Global Guard handle AI-assisted patent filings at the EPO?
Yes. We review inventorship and entitlement with your team, prepare the filing strategy and coordinate the European application with European patent attorneys, and the PCT and national phases through qualified local correspondents in Europe, Latin America and Africa, so the designation stays consistent and you keep a single point of contact.
How IP Global Guard can help with AI-assisted inventions
T 528/25 shows that an AI-assisted invention can fail on a form rather than on its merits. IP Global Guard, the IP services line of META Channel Corporation Limited, combines AI and patent strategy with one strategy and one billing relationship across more than 25 jurisdictions in Europe, Latin America and Africa, and the wider group also advises on AI Act compliance.
Tell us which inventions came out of AI-supported research, who worked on them and where you plan to file. We will check the inventorship record, draft a consistent designation and coordinate the EPO and PCT filings from a single point of contact. Contact our patent and AI team.
This article is general information, not legal advice, and reflects the position at its date of publication.
Sources
- EPO Boards of Appeal, T 0528/25, Designation of inventor/DABUS (5 February 2026)
- EPO Legal Board of Appeal, J 0008/20, Designation of inventor/DABUS (21 December 2021)
- EPO, Guidelines for Examination, A-III, 5.1 Designation of inventor (April 2026)
- EPO, Guidelines for Examination, A-III, 5.3 Designation filed in a separate document (April 2026)
- EPO, Guidelines for Examination, A-III, 5.4 Deficiencies (April 2026)
- EPC, Article 81 Designation of the inventor
- EPC, Rule 60 Subsequent designation of the inventor
- EPC, Rule 163 Examination of certain formal requirements (Euro-PCT)
