EPO Says No – invention made with AI refused patent application

An artificial intelligence called DABUS hit the headlines earlier this year after patent applications were filed for two inventions it was used to devise, testing the boundaries on recognition of machine learning inventorship. The first application relates to interlocking food containers based on fractal shapes that are easy for robots to pick up, and the second to a lamp designed to flicker in a rhythm that is difficult to ignore. The applications were filed at various patent offices including the European Patent Office (EPO).

For both European applications, the sole inventor was named as “DABUS – the invention was autonomously generated by an artificial intelligence”. This prompted the EPO to summon the applicant, Dr Stephen Thaler the creator of DABUS, to a hearing to discuss whether or not the application complied with the rules on naming the inventor.

The minutes from the hearing confirm that the EPO refused both applications, in part due to the artificial intelligence not having a family name, which is one of the formal requirements on naming the inventor under European patent law.

Further, the EPO asserted that a machine cannot own property or rights to an invention and therefore cannot transfer any such rights within an employment relationship or by succession. This meant that the applications failed to meet the requirement to state how the applicant acquired the rights to the invention from the inventor.

Whilst there is no mention in European patent law that an inventor must be human, the EPO were still able to reject the applications based on formal grounds within the existing legal framework. This helped the EPO avoid some of the thorny issues surrounding the legal personhood of an artificial intelligence. Arguably, this issue is not a matter for the EPO and is up to the member states of the European Patent Convention to decide on.

It appears likely that the applicant will appeal this decision, and we will continue to monitor developments on this case.