Disappointment for DABUS as the EPO and UKIPO Conclude Artificial Intelligence Cannot be Named an InventorFebruary 12, 2020

The European Patent Office (EPO) and the United Kingdom Intellectual Property Office (UKIPO) recently tackled an issue that has sparked much discussion involving artificial intelligence (AI) innovation. Two patent applications were recently filed via the Patent Cooperation Treaty (PCT) in the United States, United Kingdom, Germany, Israel, China, Korea, and Taiwan, naming DABUS—an AI machine—as the inventor. For a brief summary of the issues, see the author’s previous post here.

First and foremost, the central issue to be resolved surrounded the question of whether AI can be named as an inventor on a patent application. Both the EPO and UKIPO refused the two DABUS patent applications. The EPO reasoned that under the European Patent Convention (EPC), the term “inventor” refers only to a natural person. They further argued that there is “clear legislative understanding” that an inventor is a natural person, not a machine. Therefore, DABUS could not be named as an inventor.

The Offices further voiced concern regarding the ability of AI to hold legal rights, including the ability to hold and transfer property. For the patent applications in question, DABUS was named as the inventor on the applications, however, Dr. Stephen Thaler (the developer of DABUS), was named as the applicant on the patent applications. Therefore, the Offices questioned how the applicant was able to derive any rights to the invention from the inventor when “an AI machine [the inventor] cannot hold property rights.” See UKIPO Decision. Without the ability to hold such legal rights, AI machines cannot be understood to transfer any legal rights to the owner or applicant of a patent application, even if it is acknowledged that the AI created the invention.

Although the DABUS patent applications have been unsuccessful at the EPO and UKIPO, the decisions may be appealed, and the applications are still pending in many other countries. While the opinions of the EPO and UKIPO may not be surprising, this certainly will not be the end for DABUS, as the issue surrounding incentivizing innovation still remains, particularly considering the increasing role of AI in modern innovation and technology.

Tina G. Yin-Sowatzke, Pharm.D. is an Associate Attorney in the MVS  Biotechnology & Chemical Practice Group . To learn more, visit our MVS website, or contact Tina directly via  email .

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