“Whether machine learning will advance to the point where a machine can truly conceive within the framework of what we consider innovative and worthy of a patent is open for debate, but we are not there yet.” – Gene Quinn

Earlier this month, the European Patent Office (EPO) and the UK Intellectual Property Office (UKIPO) each rejected two patent applications that designated an artificial intelligence named DABUS as the inventor. While the UKIPO published a decision setting out its reasoning, the EPO simply stated at the time that the applications did “not meet the requirement of the European Patent Convention (EPC) that an inventor designated in the application has to be a human being, not a machine.” Now, the EPO has released more detail about the grounds for its decision.

The applications at issue are for a “food container” (number EP3564144/ EP 18 275 163 ) and “devices and methods for attracting enhanced attention” (number EP3563896/ EP 18 275 174). They were filed by the Artificial Inventor Project, which has filed patent applications for the inventions via the Patent Cooperation Treaty (PCT) in the United States, United Kingdom, Germany, Israel, China, Korea and Taiwan.

DABUS was developed by Dr. Stephen Thaler, who is named as the applicant on the patent documents. DABUS stands for “Device for the Autonomous Bootstrapping of Unified Sentience” and independently created the inventions at issue. “The inventions were conceived by a generative machine intelligence, judging merit of its own self-conceived ideas based upon its own cumulative experience,” according to the Artificial Inventor Project website.

In the EPO press release today, the Office explained:

The EPO considered that the interpretation of the legal framework of the European patent system leads to the conclusion that the inventor designated in a European patent must be a natural person. 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.

The press release also linked to the two nine-page decisions refusing each application, which set out the facts of the prosecution history and detailed its analysis. In both decisions, the Office explains that the applicant indicated that ‘the invention had been made by a machine and that the machine ‘identified the novelty of its own idea before a natural person did.’” The applicant further argued that “acknowledging machines as inventors would facilitate the protection of the moral rights of human inventors and allow for recognizing the work of the machine’s creators.”

However, the EPO again explained that indicating the name of a machine does not meet the requirements of Rule 19(1) EPC. That rule requires that the designation state the family name, given names and full address of the inventor and, where the applicant is not the inventor, a statement indicating the origin of the right to the EU patent, including the signature of the applicant.

“Names given to things may not be equated to names given to natural persons,” wrote the EPO. Names given to natural persons allow them to exercise rights and also “form part of their personality.” AI systems or machines have no legal personality at present, and legislation would be required to create one. T

The EPO also said that the legislative history, or Travaux préparatoires, supports the conclusion that the legislators understood an inventor to be a natural person only, as the option to add legal persons as inventors was mentioned but not included in the final draft. “In the context of inventorship reference is made only to natural persons,” wrote the EPO. Furthermore, this is an internationally accepted standard, said the decision.

In its Frequently Asked Questions, the Artificial Inventor Project explains that it does not advocate for AI to own patents, but for the AI’s owner to own patents on AI-generated inventions. Other articles on the site argue that naming a human as inventor on an invention created by an AI system “would dilute the principle that the true inventor must be identified, that is the actual deviser of the invention.”

Not There Yet

IPWatchdog CEO and Founder Gene Quinn said that the EPO’s reasoning “makes all the sense in the world.” He added:

Fundamentally, invention occurs with a conception, which grows from an idea. It is impossible for artificial intelligence to meet that basic prerequisite for what we today consider invention. Artificial intelligence is not human intelligence, but rather appears from the human perspective as if there is thoughtful intelligence. Whether machine learning will advance to the point where a machine can truly conceive within the framework of what we consider innovative and worthy of a patent is open for debate, but we are not there yet and the laws would need to adapt to address such a future reality, should it be achieved. What seems more likely is some sui protection that would incentivize the creation of machine-realized innovation.

The decisions to refuse the two patent applications can be appealed by the applicant within two months at the EPO’s independent judiciary, the Boards of Appeal, said the EPO release.

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