The EPO rejected two European patent applications on the grounds that the designated sole inventor, an AI system, did not fulfill the requirements of the EPC accepting only human persons as inventors. The EPO states in the decision that AI systems or machines cannot be holders of the rights conferred to an inventor by the EPC. A closer look at the patent specifications, on the other hand, reveals that these do not contain any evidence supporting the allegation of the applicant that AI was plausibly involved in the inventive process of devising the claimed inventions.

On 26 January 2020 the European Patent Office (EPO) published the reasoned decisions to refuse the two patent applications EP18275163 and EP18275174 for failure to name a natural person as inventor.

The identical applicant of both patent applications claims that the true inventor is a machine intelligence system developed by the applicant called DABUS, based on artificial neural networks allegedly being able to perform creative work. The applicant thus designated “DABUS” as the sole inventor in both patent applications and stated that he as applicant had obtained the right to the European patent from DABUS as a successor in title.  

The EPO refused both applications under Art. 90(5) of the European Patent Convention (EPC) for formal reasons, since the requirements of Art. 81 EPC

“The European patent application shall designate the inventor. If the applicant is not the inventor or is not the sole inventor, the designation shall contain a statement indicating the origin of the right to the European patent.” 

and Rule 19(1) EPC

“(1) The request for grant of a European patent shall contain the designation of the inventor. [...] The designation shall state the family name, given names and full address of the inventor, contain the statement referred to in Article 81 and bear the signature of the applicant or his representative.” 

were not met. These requirements were interpreted by the EPO in such a way that the designated inventor has to be a human person. Mentioning the name of a machine thus does not fulfill the requirements.

In defence of his request to designate the AI system DABUS as the inventor, the applicant relied in particular on the following arguments:

  • The Al system DABUS would be the actual deviser of the invention underlying the application. It would be a fundamental principle of patent law that the applicant must indicate the true inventor of the invention.
  • Rule 19(1) EPC would not require that the inventor is a human person.
  • Allowing an AI system or machine to be designated as inventor would be in line with the purpose of the patent system, namely to incentivise disclosure of information, commercialisation and development of inventions.
  • Not accepting Al systems as inventors would exclude inventions made by Al from patentability, contrary to Articles 52-57 EPC.

Reasons for rejection

The EPO based its decision to reject the application essentially on the following reasons:

  • The legal framework of the EPC provides only for natural persons and legal persons to act within the system created by the EPC. Non-persons, i.e. neither natural nor legal persons do not have any role in proceedings before the EPO. In the context of inventorship reference is made only to natural persons. This indicates a clear legislative understanding that the inventor has to be a natural person.
  • Names given to things may not be equated with names of natural persons. Names given to natural persons serve not only the function of identifying them but enable them to exercise their rights and form part of their personality. Things have no rights which a name would allow them to exercise.
  • Under the EPC, the inventor has particular rights including the initial right to the European patent (which she can assign to a third party) and the right to be mentioned and designated as inventor on the publications of the application and the granted patent. Al systems or machines have at present no rights because they have no legal personality comparable to natural or legal persons. Legal personality is assigned to a natural person as a consequence of their being human, and to a legal person based on a legal fiction. Such legal fictions are either directly created by legislation, or developed through consistent jurisprudence. In the case of Al inventors, there is no legislation or jurisprudence establishing such legal fiction. It follows that Al systems or machines cannot have rights derived from being an inventor, such as the right to be designated as an inventor in the patent application. AI systems or machines also cannot transfer any rights such as the right to a European patent to a successor of title.

Consequently, the patent application was refused, since the designation of inventor filed by the applicant naming the machine DABUS as inventor does not meet the requirements of Art. 81 and Rule 19(1) EPC recited above. The decision is open to appeal by the applicant.

It should be noted that the EPO in accordance with Rule 19(2) EPC did not verify whether or not the AI system DABUS could in fact be the inventor of the invention as claimed by the applicant. 

The application EP18275174 relates to a “device for attracting enhanced attention” comprising a lamp emitting light pulses having a fractal dimension of ½, which according to the description particularly stimulates the human brain.

The light pulses having a fractal structure, however, are not described in the application to be generated by AI or machine learning but are simply received as an “input signal”. It is therefore not apparent at all where the alleged machine intelligence system DABUS could have contributed to the invention.

The same applies to the second invention relating to a food or beverage container having a wall formed of fractal structures.

The title of the first invention appears to be aptly chosen, as the applicant obviously wanted to attract enhanced attention to himself and his AI system DABUS by naming it the inventor. 

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