Member Article

Today, artificial intelligence (AI) based on neural networks may come up with ideas that are not dependent on human input. This raises questions as to who shall be regarded as the inventor of an invention created solely by a machine. Could an AI system be considered the inventor behind a patented invention?

The answer is no, concludes EPO – the European Patent Office - in two recent applications.[1] The Artificial Inventor Project filed the applications as an incentive to change the possibility of obtaining patent on AI inventions. Applicable law today is that the inventor must be a natural human being for the patent to be approved.

The project does not intend to change the law so that AI becomes the owner of the patent. The aim is to recognize the possibility of listing AI as the rightful inventor of a patent. In that way, the owner of the AI system would also become owner of the patent. Ryan Abbott, professor and patent lawyer, and part of The Artificial Inventor Project, believes that the result of rejecting these patent applications will be that other applicants will lie about inventions in the future.[2]

Hoping to turn the status quo of patent law, The Artificial Inventor Project filed two applications for inventions created autonomously by the artificial intelligence machine Dabus AI. The first application concerned an invention relating toa new food container based on fractal geometry (application number EP 18 275 163). The second application covered an invention related to a new way of attracting human attention in emergency situations (application number EP 18 275 174). EPO as well as UKIPO found that the inventions met the basic requirements for patentability,[3] but the requirement of a human inventor prevented approval of the patents. The Artificial Inventor Project has announced that they intend to appeal the decisions.

Both inventions were created by the creativity machine Dabus AI. Dabus AI is a system for artificial intelligence based on two neural networks that independently conceive new ideas and art forms. The system is designed to create things without any human input at all. Seeing that no natural person had been designated as inventor in the patent applications, the applications were rejected in accordance with the European Patent Convention (EPC) Rule 19 and Article 81.

EPO later sent a press release concerning their decisions. In the press release, The EPO considered that the interpretation of the legal framework of the European patent system leads to the conclusion that the inventor designated in a European patent must be a natural person. The Office further noted that the understanding of the term inventor as referring to a natural person appears to be an internationally applicable standard, and that various national courts have issued decisions to this effect.[4]

The Artificial Inventor Project argues that patent protection for AI created works is a necessary incentive for AI innovation. The present rules grants no patent protection for the owners of AI systems that create new inventions. Today, it would require an amendment of the EPC to recognise AI as the inventor of a patent. AI in patent inventions and applications is becoming increasingly more relevant, and the World Intellectual Property Organization (WIPO) and EPO are discussing whether amendment of the laws are required.[5][6]