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In Europe an inventor has to be human

As mentionned in the recent EPO newsletter, the EPO has recently refused two patent application (EP 18 275 163 and EP 18 275 174) on the grounds that they do not meet the requirement of the EPC that an inventor designated in the application has to be a human being, not a machine.

In both EP applications, the applicant had indicated in the designation of inventor form:

"DABUS - The invention was autonomously generated by an artificial intelligence"

Initially the applicant had indicated that he had acquired the right to the patent as employer of the inventor and finally corrected this by indicating that he was the successor in title.

Arguments of the receiving section of the EPO

The receiving section of the EPO considered that the right to an invention and a moral right to be designated as inventor can belong only to a natural person, since only natural persons can have both moral and property rights.

Furthermore, the receiving sections points out that throughout the EPC and in the travaux preparatoires the inventor is refereed to as a "person" that is to be understand as a "natural person".

Finally, the receiving section points out that although national courts the competence to decide who is the inventor and who has the right to the European patent, the EPO and in particular the receiving section is required to check whether the designation of inventor has been filed according to Art 81 and Rule 19 EPC. Since a machine cannot have a legal personality, nor a family name and given names the designation of invention cannot fulfill the requirements of Rule 19 EPC.

Arguments of the applicant

The applicant stated that the invention was made by a machine and that the machine "identified the novelty of its own idea before a natural person did".

Prior and during Oral proceedings the applicant argued that acknowledging machines as inventors would facilitate protection of moral rights of human inventors and allow for recognizing the work of the machine's creator.

The applicant pointed out that not accepting AI systems as inventors would exclude inventions made by AI from patentability, contrary to Art 52 to 57 EPC.

Furthermore, the applicant pointed out that in the EPC there is no mention that the inventor must be a human.

Finally, the applicant argued that even though AI systems have no moral rights or ownership rights, the same applied to certain categories of people as well. according to him, it would not be right to deny these people the right to be named as inventor for this reason. The same should apply to AI.

The Receiving section finally decided to refuse the applications since the designations of inventor filed do not meet the requirements of Art 81 and Rule 19 EPC.

The EPO new letters states that "a reasoned decision may be expected in January 2020".

Update : January 28, 2020

The grounds of the decision are now available online on the EPO register.

An interesting document is also a report issued by the five largest IP office in the world (EPO, JPO, KIPO, CNIPA and USPTO) dated October 31, 2018 that states that "All IP5 jurisdictions require that the inventor is a human being."

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