EPO Appeal Board Affirms Only Humans Can Be Inventors

The field of Artificial Intelligence (AI) is rapidly evolving, with new applications being discovered on a regular basis. It is still rethinking how to approach and solve problems in a variety of industries. AI advancements in this Fourth Industrial Revolution period have resulted in AI capable of developing innovative and inventive inventions. The next question is whether these AI-generated inventions are patentable under current patent law.

In the cases J 8/20 and J 9/20, the question of whether a European patent applicant can name an artificial intelligence machine that lacks legal standing as an inventor arose. Applications were filed in a number of jurisdictions, including the European Patent Office, designating the AI system DABUS as the inventor, with the petitioner claiming that DABUS created the inventions entirely on its own.

According to Article 81 EPC and Rule 19(1) EPC, the designation of the inventor is a formal requirement of the European Patent Convention (EPC) that a patent application must comply with.

The Receiving Section of the EPO denied both applications. In its decisions, it found the applicant's designation to be incompatible with Article 81 EPC for two reasons.

1. It was determined that under the EPC, only a human inventor could be considered an inventor. As a result, naming the machine as an inventor violated Article 81 and Rule 19(1) of the EPC.

2. A machine, according to the Receiving Section, cannot transfer any rights to the applicant.

This formal condition is assessed prior to and separate from the substantive examination, and there is no assessment of whether the application's subject matter meets the patentability standards.

As a result, the Receiving Section found that the applicant's claim that they were a successor in title because they owned the machine did not meet the requirements of Article 81 EPC in conjunction with Article 60(1) EPC.