Can computers invent? EPO says no to AI inventors

In a landmark ruling, the European Patent Office (EPO) has provided its opinion on whether an AI system can be designated as an inventor on a European patent application.

The decision: No. 

The reason: inventors under the European Patent Convention (EPC) are understood to be ‘natural persons’. That is to say, the inventor(s) must have a legal personality. The two patent applications at the centre of the EPO’s decision both named the inventor as a machine called “DABUS”, which is “a type of connectionist artificial intelligence”.

The EPO also noted that this approach – requiring a human to be designated as the inventor – was consistent with the national approaches taken within European countries and the international consensus evident from China, Japan, Korea and the USA.

The decision – which is subject to appeal – pointed out that the applicant could have corrected the initial designation of inventor to name a human, and indeed can still do so at time of writing, but chose not to when given the opportunity to do so.

Commentary
Philosophical questions regarding AI personalities aside, a historical precedent has been set by the EPO in this regard. If inventors want patents involving AI/Machine Learning, all inventors named on the application will have to be natural persons. 

The World Intellectual Property Organisation is currently running a consultation on policy relating to AI in intellectual property and is seeking views on three questions regarding inventorship for inventions that are autonomously generated by an AI application:

  • Should the law permit or require that the AI application be named as the inventor or should it be required that a human being be named as the inventor?
  • Do specific legal provisions need to be introduced to govern the ownership of autonomously generated AI inventions?
  • Should the law exclude patent protection for any invention that has been generated autonomously by an AI application?
    Interestingly, for some other types of IP, the law already has answers. For example Irish and UK copyright law (along with a small number of other countries) specifically allow for copyright to exist for a computer-generated work, providing that the “author”, who is regarded as the creator of the work, in such a case is deemed to be “the person by whom the arrangements necessary for the creation of the work are undertaken.” However, many countries do not follow this approach, and so there is uneven treatment internationally of such works.

The Next Rembrandt – created by AI

As the EPO decision shows, these questions are not just theoretical. Real inventions are being generated by AIs, and in the field of copyright recent years have seen very impressive works being generated including a 3D-printed painting entitled “The Next Rembrandt” created by an AI which analysed the Dutch master’s catalogue of work, and a Japanese short-form novel that made it through the first round of judging for a national literary prize.

Clearly, the law is going to have to catch up quickly and policy makers will have to decide firstly whether AI-generated creations are entitled to IP protection in principle, and if so, how to adapt the laws that currently assume humans are always required to generate an invention, design, literary or artistic work.

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