On January 27, 2020, the European Patent Office (EPO) published the reasons for its decisions to reject two European patent applications[1] under which an artificial intelligence system, named “DABUS”, had been designated as the inventor.

The applications[2] concerned two inventions created without human intervention: a beverage container based on fractal geometry and a device based on flickering light for attracting attention during search and rescue operations.

Following a request for clarification from the EPO, the applicant argued that there was no justification for limiting the status of inventor to natural persons and that the possibility of filing a patent in the name of an AI would probably encourage the development of innovative systems by offering protection to developers.

In addition, the applicant observed that the registration of the patent in the name of a natural person, when the invention was solely the result of a machine, was likely to mislead individuals as to the authorship of the invention.

These submissions did not persuade the EPO, which refused the registration of these applications on the grounds that they did not satisfy the requirements of Article 81 of the European Patent Convention or of Rule 19(1) of its Implementing Regulations according to which the application must contain the designation of the inventor, including its full name and address.

Furthermore, the EPO specified that a machine cannot qualify as an inventor insofar as it does not have legal personality and therefore cannot benefit from the rights attached to this status.

While we do not know to date whether the applicant has appealed against these decisions, the question of the designation of AI systems as inventors remains open in any case. In this respect, it will be particularly interesting to see the conclusions of the public consultation on AI and intellectual property policy launched by WIPO, which will notably answer the following question: “Should the law permit or require that the AI application be named as the inventor or should it be required that a human being be named as the inventor?” The WIPO’s Issues Paper is expected to be published by mid-May 2020. To be continued…

 

[1] Grounds for the EPO’s decision of 27 January 2020 on application EP 18 275 163 and Grounds for the EPO’s decision of 27 January 2020 on application EP 18 275 174

[2] EP 18 275 163 and EP 18 275 174