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EPO – European patent applications naming an Artificial Intelligence (AI) system as inventor refused

29 Jan 2020

EPO, Receiving Section, decisions of January 27, 2020 in consolidated proceedings on applications EP 18 275 163 and EP 18 275 174

Applicant Dr. Stephen Thaler filed two European patent applications. In the request for grant Form, the field for indicating the inventor was left empty. In reply to the invitation to designate the inventor(s), the applicant filed EPO Form 1002 designating as inventor DABUS, an AI system developed by the applicant, and submitted that DABUS should be acknowledged as inventor and he, as the machine’s owner, as assignee of the resulting patent. Later on, the applicant corrected Form 1200 and declared that he had obtained the right to the patent as successor in title.

After oral proceedings held on November 25, 2019, the application was refused. In its decision posted on January 27, 2020, the Receiving Section states that designating a machine as inventor does not meet the formal requirements under Article 81 and Rule 19(1) EPC, requiring that a natural person is indicated as an inventor. This understanding is confirmed by the travaux préparatoires to the EPC and the Minutes of the Munich Diplomatic Conference showing that the legislator wanted to safeguard the inventors’ position by giving them various rights. In addition, the Receiving Section observes that the understanding that the inventor has to be a natural person appears to be an internationally applicable approach, citing several national decisions in support.

The decisions are open to appeal to the Legal Board of Appeal of the EPO.

The UKIPO has rendered a corresponding decision on two applications, finding that DABUS is not a person as envisaged by sections 7 and 13 of the Patents Act and so cannot be considered an inventor.

A copy of the decision in EP 18 275 163 can be read here.
A copy of the Communique of the EPO can be read here.
A copy of the decision of the UKIPO can be read here.

Reported by Dr. Rudolf Teschemacher, Bardehle Pagenberg