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Can a Machine be an Inventor?

by Dr Tim Fray

The European Patent Office (EPO) publishes its grounds for its decision to refuse two patent applications naming a machine as inventor.

Tags for the image above were “person, human, joy”. This about sums up the recent decision on artificial Intelligence at the EPO for me. Picture Credit: Pixabay

I must say I am glad with what the EPO have decided. The decision concerned whether two European Patent applications could have an Artificial Intelligence (AI) system an inventor. The EPO have refused the applications following oral proceedings with the applicant in November 2019, on the grounds that they do not meet the legal requirement of the European Patent Convention (EPC) that an inventor designated in the application has to be a human being, and not a machine.

The applicant stated that he had acquired the right to the European patent from the inventor by being its successor in title, arguing that as the machine’s owner, he was assigned any intellectual property rights created by this machine.

The EPO have taken the opportunity to reaffirm that the inventor designated in a European patent must be a natural person and the inventor must have a legal personality, something that AI systems or machines do not enjoy.

The first thing that strikes me is that the applicant claimed he acquired the rights, but I wonder whether the “inventor” was present in the oral proceedings, or indeed called. Secondly, I don’t think this will be the end of matters. There will be future cases where there is discussion around the patentability of an invention where the inventor is an AI will be discussed. But say for example a patent is to be prosecuted with an AI as an inventor, surely the skilled person against which inventiveness is judged should be an AI too? Surely then everything is obvious, and lacks an inventive step? So perhaps having an AI as an inventor is not the real issue, but inventiveness is.

I would be interested to hear your thoughts on this.

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