As already laid out above, according to Austrian law any technical teaching may be patented under Austrian patent law as long as it is novel, inventive and commercially applicable. However, there is some discussion internationally about whether a technical solution created by an AI is or should be patentable.
- Austrian Patent Act (APA)
Sec 1 para 1 APA defines an invention by merely objective criteria irrespective of any human intellectual effort necessary for an inventive step. However, pursuant to Sec 4 para 1 APA, inventorship serves as a starting point for the right to be granted a patent. Thus, in theory, an invention may not be patented if there is no human inventor involved at all.
At least according to Austrian law, the inventor must always be a natural person who discovered the main inventive idea behind a patentable invention by creative conduct. This is mainly of relevance under Austrian patent law, as only the inventor (and their legal successors) are entitled to be granted a patent. It is disputed whether such a finding must be the result of wilful creative conduct by the inventor, and one may easily argue that any natural person operating the AI, and thus discovering the technical solution proposed by the AI, may be deemed the inventor.
However, even if no inventor is determined, this would not preclude the patentability of the invention. Pursuant to Sec 99 para 1 of the Austrian Patent Act, the Austrian Patent Office will not examine whether the subject applicant of the patent is actually entitled to be granted a patent for an invention mostly made by AI. As there is no legal remedy under the Austrian patent regime based on the mere absence of a human inventor, any such patent can hardly be challenged on such grounds.
- European Patent Convention
The question of inventorship is slightly more relevant with regards to European Patent applications. The Board of Appeals of the European Patent Office has already laid out (EPO BoA J 0008/20) that it is mandatory to designate a human inventor according to Article 81 EPC. Thus, any application designating a program or no inventor at all would be rejected. However, as the BoA expressly pointed out, this may ultimately make no difference with regards to overall patentability, as no provision would prevent any applicant from simply naming the user of the AI as the inventor.