Can a machine be an inventor?

In the European patent applications EP 18 275 163 and EP 18 275 174, the receiving office of the European Patent Office dealt with the question of whether the naming of a machine as an inventor fulfils the formal requirements of the EPC. The applicant of the two patent applications had indicated the machine DABUS as the inventor in the designations of the inventor. In the attached submission, the applicant stated that DABUS was a type of connectionist artificial intelligence (AI) from which he, as employer, would have obtained the right to the European patent.

The receiving section of the European Patent Office invited to oral proceedings. The applicant did not change the designation of the inventor. Finally, the receiving section decided to reject the patent applications.

In its written statement of grounds, the Receiving Section stated that the indication of the name of a machine did not satisfy the requirements of Rule 19(1) EPC. Under Rule 19(1) EPC, the designation must contain the surname, first name and full address of the inventor, the declaration referred to in Article 81 EPC and the signature of the applicant or representative. The Receiving Section states that names of objects should not be equated with names of persons. Objects would not have rights which a name would allow them to exercise. AI systems and machines in particular would not have any rights at this stage because they would not hold a legal person comparable to a natural or legal person.

The legal framework of the European Patent Convention would, under Article 58 EPC, confer certain powers on natural persons, legal persons and legal entities equivalent to natural persons. However, the EPC would not confer any powers on non-persons, either as applicants, inventors or in any other role in the grant procedure before the European Patent Office. This would indicate a clear legal understanding that the inventor is a natural person. At the international level, this legal understanding has been confirmed by the contracting states of the EPC and patent offices of other states, whereas the receiving office has not found any national law that would recognize an object as an inventor.

Nor would the patent applications meet the requirements of Articles 81 and 60(1) EPC. The explanation of how the applicant acquired the right to the European patent could not be attributed to an AI system or a machine. AI systems or machines could neither be employed nor transfer a right to a successor in title.

The Board of Appeal of the European Patent Office had already indicated in recent decisions that the inventor was a natural person. However, the Board of Appeal has not yet been called upon to decide whether an entity that is not a natural person can be recognized as an inventor. The applicant is now free to appeal the decision in order to have this question answered by the Board of Appeal.

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