In the last week of January this year, the European Patent Office (EPO) and the United Kingdom Intellectual Property Office (UKIPO) both rejected two patent applications that listed artificial intelligence as the inventor. One application was for a “food container”, while another describes “devices and methods for attracting enhanced attention”.
A major precedent has just been set. For years the IP industry has been pondering the question if an artificial intelligence can successfully patent an invention. This ruling points towards the answer being no (for now).
In both applications, ‘DABUS’ has been named as the inventor (“Device for the Autonomous Bootstrapping of Unified Sentience”). DABUS was created by Dr. Stephen Thaler with the patent attempt titled as the ‘The Artificial Inventor Project’ lead by a team of a mixture patent attorneys from the UK, Europe and Internationally.
On 27th January 2020, the EPO rejected both applications. The main point of contention being that the inventor must be a ‘natural person’. Cementing this further, in the EPO’s defence of its decision they state “the Office further noted that the understanding of the term inventor as referring to a natural person appears to be an internationally applicable standard, and that various national courts have issued decisions to this effect.”
However, the team behind this AI attempt agree partly with the European Patent Convention’s requirement that “an inventor designated in the application has to be a human being, and not a machine.” What must be made clear is that this team are not advocating for an AI to own its own patents. They are pushing for the owner of the AI to own any patents that are generated by the AI. But again, if the AI is the one doing the patenting and is essentially acting as a middleman for the owner, this will not stand – the AI was said to have “identified the novelty of its own idea before a natural person did”. The EPO also wants the patent owner to receive the rights and benefits he/she deserves in relation to their patent. An AI wouldn’t be able to exercise and enjoy the rights given to a patent owner, patent license royalties are of no use to an artificial intelligence.
Naming the AI also isn’t a convenient way around this. Rule 19(1) EPC requirements also need: designation of the family name, given names, full address of the inventor, and in some cases the signature of the applicant.
Looking to the Future
The EPO has investigated the concept of AI patenting thoroughly and their recent rejection should be taken as a stance that it can’t happen right now, but this isn’t a declaration that it can’t happen forever.
The refusal of the applications can be appealed within two months, but whether the team over at The Artificial Inventor Project want to fight this battle further remains to be seen.
Artificial intelligence is not human intelligence, and whether machine learning will improve and evolve to the point where it becomes it’s own sentient being capable of independent thought and feelings is a question humans have asked ourselves for decades, and looking at the technology we will continue for a while longer.
The EPO’s ruling shows that it is too early to analyse if AI can conceive something us humans deem patent worthy. That time may come but for now it may be more worthwhile having a conversation around the frameworks and guidelines we use to determine if an AI patent is possible.
Caselton Clark are a specialist Intellectual Property recruitment company. If you would like to speak further about your IP recruitment needs then please get in touch:
+44(0)20 8076 8390