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27th February 2020
The European Patent Office (EPO) has recently issued a decision on its approach to patent applications that designate artificial intelligence (AI) systems as inventors. In January 2020, the EPO published its reasons for refusing two patent applications where the inventor named on the applications was an AI system called “DABUS”.
What did DABUS “invent?
The “Artificial Inventor Project,” a group of patent attorneys, filed two patent applications at the EPO covering inventions that were supposedly “invented” by DABUS, an AI system developed by Dr. Stephen Thaler (the “Applicant”). One application was directed to a light emitting device that could be used as an emergency signal beacon and the other was directed to a food container device.
The EPO addressed three key issues in their decisions:
Can an AI system be named as an inventor in a patent application?
The EPO applied the formal requirements of the European Patent Convention (EPC) which requires an inventor to be a named person, i.e a human being.
Would naming a natural person as an inventor mislead the public?
The Applicant argued that incorrectly listing a human as the inventor would mislead the public. The EPO rejected this argument, stating that the EPO does not verify the accuracy of named inventors. The EPO also pointed out that, because the application would be published, any member of the public could question or challenge its contents in national courts.
Can an AI system transfer the right to apply for a patent to its owner?
The Applicant argued that he obtained the right to apply for the patents from DABUS. However, the EPO rejected the idea that a machine or AI system could own any intellectual property rights. If an AI system is unable to own any intellectual property rights, then it is unable to assign or transfer such rights to its owner.
What happens next?
Currently, it appears that an inventor must be a named human person for a patent application filed at the EPO.
As the Applicant has the right to appeal these decisions to the European Patent Office Boards of Appeal, higher authorities may provide additional guidance on this issue in the future.
The United States Patent and Trademark Office (USPTO) has not yet rejected these applications. Last year, the USPTO published a Notice requesting information from the public on AI patent-related issues, including whether current patent laws and regulations regarding inventorship need to be revised to take into account inventions where an entity or entities other than a natural person contributed to a conception of an AI invention or any other invention.
We will keep you updated on this interesting topic. Meanwhile, inventions can still only be created by human brain power. Robbie the Robot will just have to wait before he can be recognised as an inventor.