Is this the end to AI as an inventor?
The EPO Legal Board of Appeal recently issued its decision in the appeal in the DABUS cases (J8/20 and 9/20) and confirmed the earlier decisions from the Receiving section of the EPO, meaning that the two EP applications have been refused.
The applications in question were filed by Dr Stephen Thaler, but named an artificial intelligence machine, known as DABUS, as the inventor. The EPO originally decided that the applications were not consistent with Article 81 EPC for two primary reasons: (1) only a human inventor could be an inventor within the meaning of the EPC and therefore, as the DABUS machine was clearly not a human, the designation of inventor did not comply with the requirements of Article 81 and Rule 19(1) EPC; and (2) a machine did not have legal capacity and so could not transfer any rights as an inventor to the applicant
Corresponding applications have been filed in other jurisdictions including South Africa and Australia, both of which have granted the applications. The South African case did not make any decision in relation to the inventor status, as the inventor status was handled via the PCT application from which it resulted, and the Australia case indicated that AU law did not prevent DABUS being an inventor.
However, in the final EPO proceedings, the EPO Legal Board of Appeal agreed with the earlier decisions and confirmed that, in order to be named as an inventor, there has to be a person with legal capacity. Thus, at least for the time being, it seems that the EPO is in line with the USPTO and the UKIPO in confirming that an inventor on a patent application must be a human.
