EPO Publishes Grounds for Refusing AI-Invented Patent Applications

Author:Mayer Brown
Profession:Mayer Brown
 
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On 28 January 2020, the European Patent Office (EPO) published its reasons for two recent decisions refusing two European patent applications in which a machine named DABUS—"a type of connectionist artificial intelligence"—was designated as the inventor. The applicant had argued that the machine should be recognized as the inventor and that he, as the owner of the machine, was an assignee of any IP rights created by his machine.

The EPO did not agree with the applicant's position and held that an application designating a machine as the inventor did not meet the formal requirements under Art. 81 and Rule 19(1) of the European Patent Convention (EPC). The EPC did not provide for "non-persons, i.e. neither natural nor legal persons" in any role in patent grant proceedings.

In particular, the EPO held that, at present, AI systems or machines have no rights because they have "no legal personality comparable to natural or legal persons." Where "non-natural persons" are concerned, legal personality is only given on the basis of legal fictions, which are either created by legislation or through jurisprudence. In the case of AI inventors, there has been no legislation or jurisprudence establishing such legal fiction. Since AI systems or machines, therefore, do not have rights, they, consequently, do not have "any legal title over their output" which could possibly be transferred to a new owner.

The EPO decisions to refuse the AI-invented patent applications can be appealed with the EPO's Board of Appeal within two months of notification of the decisions.

This article was originally published on AllAboutIP - Mayer Brown's blog on relevant developments...

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