The inventor named in a European patent must be a natural person. In a highly regarded decision of the EPO the AI ‘DABUS’ was rejected as inventor and the corresponding patent applications were rejected. Because an AI has no personal rights. Now the full text of the decision has been published.
Inventions were created autonomously by AI ‘DABUS’
The two patents, EP 18 275 163 and EP 182 751 74, concern a beverage container and fractal light signals respectively. Especially the fractal light signal (EP 18 275 174) is explained in detail in the corresponding patent description. The invention shows a device and method which is intended to attract optical attention like a lighthouse during search operations. An adaptive algorithmically controlled neural flame is to serve as a beacon of the signal. The two patent pending inventions were created autonomously by the AI ‘DABUS’, which led to the owner of the AI naming the AI ‘DABUS’ as the inventor.
The patent applicant and owner of the AI ‘DABUS’, Stephen Thaler (USA), has been working with AI for decades. He has been publishing papers on artificial neural networks under the name Creativity Machines® since 1997, but Thaler reported at conferences that the AI ‘DABUS’, which has been registered as an inventor, goes far beyond the usual machine-on-off patterns of neural structures. According to Thaler, cumulative cycles of learning and unlearning, which do not follow a fixed pattern, connect a part of the neural networks in DABUS to structures that produce such complex concepts as the two patent applications. The name “DABUS” of the AI stands for “Device autonomously bootstrapping uniform sensibility”.
Rule 19 EPC serves only to identify the inventor
The patent applicant Thaler explained that the inventions had been made by the AI itself. He argued that the machine should be recognized as an inventor and that he himself, as the applicant and as the owner of the machine, was an assignee of any IP rights created by the AI ‘DABUS’.
Rule 19()1 EPC does not require that the inventor is a human being, but serves only the purpose of properly identifying the inventor. The designation of the inventor filed in the present case fulfils this requirement, Stephen Thaler found. The provision that a designation must contain both a first name and a surname would deny persons with only one name (monoyme persons, e.g. Javanese names according to Wikipedia) the right to be named as inventor. Furthermore, the fact that an AI system has neither moral nor property rights is not an obstacle to being registered as an inventor, Mr. Thaler has argued.
The requirements for patentability are exclusively defined in Art 52 – 57 EPC. According to Mr. Thaler, a procedural requirement under Rule 19 EPC could therefore not introduce a substantive exclusion from patentability for inventions made by AI systems.
Names of things not to be equated with names of persons
The European Patent Office rejected this argumentation, as the full text of the decision now published shows in detail. In accordance with Rule 19(1) EPC, the designation must contain the surname, first name and full address of the inventor, the Patent Office stated. However, names given to things must not be equated with names of natural persons. Names given to natural persons enable them to exercise their rights and be part of their personality, and this also applies to monoyme persons.
In contrast, things have no rights, especially no personal rights. The EPO cited numerous national rules on rights relating to the personal name, for DE § 12 of the German Civil Code (in ger: BGB), for FR Article 57(2) of the French Civil Code and for IT Article 6(1) of the Italian Civil Code.
Designation of an inventor mandatory, as legal consequences
The designation of an inventor is also mandatory because it has a number of legal consequences, explained the EPO. In particular, naming the inventor ensures that the designated inventor is the legitimate one and that he or she can claim the rights associated with this status. However, in order to be able to exercise these rights, the inventor must have legal personality, which AI systems or AI machines do not have.
According to the interpretation of the legal framework of the European patent system, the inventor named in a European patent must therefore be a natural person, the EPO decided. This is laid down as a principle in Article 81 and Rule 19 of the European Patent Convention.
Although Stephen Thaler may have failed with the two patent applications by the inventor AI ‘DABUS’ so far, he is sure to have attracted enhanced attention on his AI ‘DABUS’ and on the patent EP 18 275 174 with the appropriate name “DEVICES AND METHODS FOR ATTRACTING ENHANCED ATTENTION”. In addition, as the applicant for the patent, he has two months to appeal against the decision before the Boards of Appeal, the independent court of law of the EPO. However, patent applications with the inventor AI ‘DABUS’ have also been rejected in the USA and UK.
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