AI Has No Personality: EPO Rules That An AI Machine Cannot Be An Inventor In Patent Applications

Author:Ms Miriam Gundt, LL.M. (Aberdeen), Stanislas Roux-Vaillard, Lukas Sievers and Adrien Bonnet
Profession:Hogan Lovells
 
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In the patent grant proceedings for two European Patent Applications, the EPO has ruled that an AI machine cannot be named as an inventor in a Patent Application. Doing so does not comply with the requirement to designate the inventor according to Art. 81 EPC and leads to the rejection of the application under Art. 90 (5) EPC. According to the EPO, only a natural person can be designated as inventor. Machines on the other hand have no legal personality and are therefore unable to have any rights.

The Applicant of two European Patent Applications indicated an AI machine as the inventor, stating that the machine has made the invention and that the Applicant wanted to indicate the truthful inventor. It was argued that the applicant obtained the right to the European patent as a successor in title of the inventor, i.e. the machine.

Decision of the EPO

The Receiving Section of the EPO rejected the patent applications because they did not meet the formal requirements under Article 81 EPC, Rule 19(1) EPC. By declaring a machine to be the inventor, the applicant had not complied with these requirements. The EPO argued that an inventor according to Article 60 EPC may only be a natural person. The legislator's intentions and the fact that the EPC allocates certain rights to an inventor were used as justification in support of the argument. AI machines are inanimate objects and as such are unable to have any kind of personality or bear rights whereas only natural or legal persons have the ability to bear rights (or obligations).

Likewise, AI machines are not able to transfer any rights to a successor in title, as was submitted by the Applicant. Given that machines have no legal personality and cannot have any legal title to a right to a patent, there is nothing they could transfer to a successor in title.

The EPO has emphasized that the formal requirement of designating an inventor does not block the invention from patentability. However, assessing formal requirements takes place prior to the substantive patentability examination. Likewise, if an invention meets the requirements of Articles 52-57 EPC, this has no influence on whether or not the formal requirements are met.

Analysis

The EPO's decision is in line with the existing legal framework. As the law stands, there seems to be no possibility that...

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