An AI system cannot be an inventor, neither under Dutch law nor at the European Patent Office. The patent right goes to the person who made the inventive contribution, but if you invent as part of your job, Article 12 of the Dutch Patent Act 1995 (Rijksoctrooiwet 1995) usually gives that right to your employer.
That rule was written long before generative AI. It still decides most disputes, but AI tools raise new questions: who made the inventive contribution, was inventing part of the job, and is the employee owed extra pay? Below we explain how Dutch law answers those questions for employers and employees.
What is an AI-generated invention?
An AI-generated invention is a technical solution in which an AI system played a real part. In practice, the role of AI falls into three broad categories, and the category affects who can claim the invention.
The first and most common is AI as a tool. A human uses AI software, such as simulation or design software, to test a hypothesis or refine a design. The human provides the idea and the direction; the software does the calculating.
The second is AI as a co-creator. A researcher and an AI system work interactively: the researcher sets parameters, the system generates options, the researcher selects and modifies them, and the system refines the result. The outcome is a mix of human and machine input.
The third is autonomous AI. The system receives a general goal, for example to find a molecule that binds to a certain protein, and produces a solution without further human input. This is the scenario that causes the most legal difficulty.
You see these situations in pharmaceutical research, where machine learning helps to identify drug candidates, in product design, where generative software proposes lightweight components, and in process innovation, where AI analyses production data to suggest a new manufacturing process.
What does Dutch patent law require?
Under Article 2(1) of the Dutch Patent Act, a patent is available for inventions in all fields of technology that are new, involve an inventive step and are industrially applicable. The same three conditions apply at the European Patent Office (EPO).
Novelty means the invention is not part of the existing state of the art. An inventive step means it would not be obvious to a person skilled in the field. Industrial application means it can be made or used in some kind of industry, including agriculture.
Can AI software itself be patented?
Computer programs “as such” are not patentable under Article 2(2) of the Dutch Patent Act and the European Patent Convention. Software can still be protected if it produces a further technical effect, for example when it makes a robot move more efficiently or improves how a computer works internally.
For AI, this means that a model or algorithm on its own is hard to patent. A concrete technical application of that model often is patentable, provided it meets the three conditions above.
Can an AI system be named as the inventor?
No. The EPO requires the inventor to be a natural person, and the Dutch Patent Act is built on the same assumption. An AI system has no legal personality, so it cannot hold rights, apply for a patent or own one.
Article 8 of the Dutch Patent Act presumes that the applicant is the inventor and is therefore entitled to the patent, subject to Articles 11 to 13. The system assumes a person, or a company acting through its employees, behind every invention.
The EPO made this explicit in the DABUS cases, in which an applicant named an AI system as the inventor. The Legal Board of Appeal ruled in decision J 8/20 that the inventor designated in a European application must be a human being. The UK Supreme Court and the US courts reached the same conclusion in parallel DABUS cases.
If an invention is truly autonomous, with no human making an inventive contribution, there may be no one who can be named as the inventor. Whether such an invention can be patented at all is still unsettled. In most real cases, however, a person frames the problem, trains or steers the system, and selects and tests the output. That person can usually be named as the inventor, provided the contribution goes beyond simply typing a prompt.
Who owns the patent: you or your employer?
The starting point is that the employee who makes an invention is entitled to the patent. Under Article 12(1) of the Dutch Patent Act, the right goes to the employer instead if the nature of the job means that the employee uses his or her special knowledge to make inventions of the same kind.
In practice, that exception covers most research and development work. An engineer, data scientist or researcher who is employed to develop new technology will usually invent for the employer. The use of AI tools does not change that: it is the nature of the job that counts, not the tools used.
Two further rules apply to specific groups. Under Article 12(2), inventions made by trainees in the course of their training work go to the organisation that provides the training. Under Article 12(3), inventions made by employees of a university or research institute in their research work go to that institution.
When is inventing part of your job?
Inventing is part of your job when your role requires you to use your specialist knowledge to develop new technical solutions in the relevant field. Your job description, your actual tasks, the nature of the business and the resources you used all play a role.
Take an employee who is hired as a machine learning engineer to develop new algorithms and who uses the company’s AI tools to build a patentable image recognition system. That invention will almost certainly belong to the employer: she was hired to innovate in exactly this field.
Compare a marketing manager who, on his own initiative, uses a coding assistant to build a new customer analytics tool that solves a technical problem. Developing technical software is not part of a marketing manager’s role. The patent right may well belong to him, even though the company benefits from the tool.
The middle ground is harder. A mechanical engineer who uses AI to optimise a production line will usually invent for the employer if process improvement falls within his duties. If he was only expected to follow instructions and not to develop new solutions, the outcome is less certain.
Can a contract change the statutory rule?
Yes. Under Article 12(5) of the Dutch Patent Act, the parties may deviate from the rules in Article 12(1) to (3), but only in a written agreement. Most employment contracts in the technology sector contain an intellectual property (IP) clause stating that all inventions made during employment belong to the employer.
Without such a clause, the statutory rule applies. For employers this can be risky, particularly for employees whose job description does not mention research or development. A clear, written IP clause avoids much of the discussion.
Why does an employer need an AI policy?
An AI policy makes clear which tools employees may use and who owns the results. Many Dutch companies still have no such policy, which creates uncertainty about ownership and weakens the employer’s position if a dispute arises.
A practical AI policy usually covers at least the following points:
- which AI tools are permitted, and for which purposes;
- that output generated with company resources or during working hours belongs to the company, within the limits of the law;
- a procedure for reporting new inventions to the employer promptly;
- rules on confidentiality, including a ban on entering trade secrets into public AI models.
A policy does not override Article 12, and it cannot take away the employee’s right to fair compensation. What it does is show what employees were expected to do, and that makes it easier for an employer to prove that inventing with AI was part of the job.
Who has to prove what?
Under Article 150 of the Dutch Code of Civil Procedure (Rv), the party who relies on a legal consequence must in principle prove the facts behind it. An employer who claims a patent under the exception in Article 12(1) must therefore show that the job involved inventing of this kind.
Useful evidence for an employer includes job descriptions, written instructions and project assignments, AI usage logs and records showing which company tools and data were used. Without a policy or clear instructions, a court may conclude that inventing with AI was not part of the employee’s tasks.
An employee can point to a job description that says nothing about research or innovation, to work done outside working hours or with personal accounts, or to an invention outside the company’s normal field of business.
Are you entitled to fair compensation for your invention?
Yes, possibly. Even if the patent belongs to your employer, Article 12(6) of the Dutch Patent Act entitles you to a fair amount (billijke vergoeding) if your salary or a special payment cannot be regarded as compensation for losing the patent.
The amount depends on the financial importance of the invention and the circumstances in which it was made. There is no fixed formula. Relevant factors include the commercial value of the patent, your salary and benefits, your personal contribution compared with the company’s resources, such as its AI tools and data, and what is customary in the sector.
Two points are easy to miss. First, under Article 12(7) any clause that departs from this right is void, so an employment contract cannot exclude it. Second, the claim lapses three years after the date on which the patent was granted. An employee who waits too long loses the right to compensation altogether.
In practice, an employee who is paid to invent will often not qualify, because the salary already reflects that work. The claim becomes realistic when the value of the invention to the company is out of all proportion to what the employee earns.
Can AI change the terms of your employment contract?
Rarely. An employee may argue that working with AI was not foreseeable when the contract was signed, and ask the court to amend the contract on the basis of unforeseen circumstances under Article 6:258 of the Dutch Civil Code (BW). The bar for that is very high.
Dutch courts apply this provision with restraint. Technological change is generally seen as a normal business risk, and in the technology sector employees can expect their tools and methods to change over time. Only if the introduction of AI fundamentally changes the nature of the job, in a way that makes keeping the contract unchanged unacceptable, does such a claim have a chance.
What about patents outside the Netherlands?
Other major patent systems also require a human inventor. The EPO does, as confirmed in the DABUS decisions, and so do the United Kingdom and the United States.
For Dutch companies that file in several countries, consistency is essential. You cannot name an AI system as the inventor in one application and a person in another without risking the validity of the patent family. Rules on employee inventions differ per country, so check the local rules if the inventor works abroad.
What is likely to change?
The rules on AI inventorship are still developing. The EU AI Act (Regulation (EU) 2024/1689) regulates the use of AI systems but does not deal with who owns an invention or who counts as the inventor.
We expect more court cases on the minimum human contribution needed to qualify as an inventor, and more debate at European level on whether the current rules still fit. Until then, the existing rules of the Dutch Patent Act and the European Patent Convention decide.
What should you do if ownership is disputed?
Start by recording the facts and checking the documents, and only then take a position. A dispute about an AI-assisted invention is mostly about evidence of who did what.
As an employee, document how the invention came about: which prompts and data you used and what your own inventive contribution was. Check your employment contract for an IP clause and read your job description. Keep emails, logs and prototypes. Report the invention to your employer in writing and ask for a written response on ownership and on compensation. Keep the three-year period for a compensation claim in mind.
As an employer, first assess whether the invention is worth patenting. Check whether the employee’s contract and any AI policy cover the situation, and collect evidence of the employee’s duties and the resources used. Consider offering fair compensation to avoid litigation. Record any transfer of rights in a written deed of assignment and have it registered in the patent register.
If you cannot reach agreement, the dispute can be brought before the court. Patent cases in the Netherlands are generally heard by the District Court of The Hague. If the value is significant, obtain legal advice from an IT and intellectual property lawyer before you take formal steps.
In summary
- An AI system cannot be an inventor or own a patent; the inventor must be a human being.
- Under Article 12(1) of the Dutch Patent Act, an employee’s invention belongs to the employer if inventing of that kind is part of the job.
- The parties can agree otherwise, but only in writing (Article 12(5)).
- An employee may be entitled to fair compensation under Article 12(6); this right cannot be excluded and lapses three years after the patent is granted.
- A clear AI policy and IP clause make ownership easier to establish.
Frequently asked questions
Can an AI system own a patent in the Netherlands?
No. Only natural persons and legal entities, such as companies, can hold property rights. An AI system has no legal personality. The full text of the Dutch Patent Act 1995 is available on wetten.overheid.nl.
Can I list the AI system as the inventor on my application?
No. The EPO has confirmed that the designated inventor must be a human being. You may describe in the application that AI tools were used, but the AI cannot be named as the inventor.
I invented something with an AI tool in my own time. Can my employer claim it?
Generally not, unless inventions of this kind are part of your job and you used your special knowledge from that job. If you used a company laptop, company accounts or company data, the position becomes less clear, and your contract may contain an IP clause that covers it.
What is fair compensation?
It is an extra payment on top of your salary if your invention is of considerable value to your employer and your salary does not compensate you for losing the patent. There is no fixed amount; it depends on the circumstances.
Does my employer need an AI policy to claim my work?
No. Article 12 of the Dutch Patent Act applies regardless. Without a policy, however, it is harder for an employer to prove that inventing with AI was part of your tasks.
Can I be a co-inventor with an AI system?
Not in a legal sense. The AI is treated as a tool. If your contribution is inventive, you are the inventor; if several people contributed, they may be joint inventors under Article 13 of the Dutch Patent Act.
Law & More advises employers and employees on IP clauses, AI policies and disputes about employee inventions. Unsure where you stand? Tell us about your situation. We will let you know your options within one working day.
