Artificial intelligence system called DABUS cannot be named as inventor according to Decisions J 8/20 and J 9/20 of the Board of Appeal of the EPO
Article 81 EPC stipulates that the European patent application shall designate the inventor.
Article 60 defines that the right to a European patent shall belong to the inventor or his successor in title.
Rule 19(1) EPC defines that the request for grant of a European patent shall contain the designation of the inventor.
An applicant has filed two patent applications in which an artificial intelligence system called DABUS was designated as inventor in the application forms. Corresponding applications have been filed in other jurisdictions.
The applicant argued that the inventions had been created autonomously by DABUS.
The Receiving Section of the EPO refused the two applications, because it concluded that only a human inventor could be an inventor within the meaning of the EPC and consequently a machine did not comply with the above stated requirements of Article 81 and Rule 19(1) EPC. Further, it considered that a machine could not transfer any rights to the applicant and thus the argument claiming that the owner of the machine is the successor in title does not satisfy the requirements of Article 81 EPC in conjunction with Article 60(1) EPC.
In the appeal proceedings the applicant filed as auxiliary request an amended description providing information as to the conception of the invention by the AI (artificial intelligence) system DABUS and an amended designation of inventor form stating that no person is identified as being the inventor with an annex that there is no other appropriate location to indicate that the applicant derives the right to the European Patent by virtue of being the owner and creator of DABUS.
Decisions of the Legal Board of Appeal of the European Patent Office (EPO)
The Legal Board of Appeal confirmed the decision of the Receiving Section of the EPO.
The designation of the inventor is a formal requirement which a patent application must fulfil according to Article 81 EPC. Therefore, the assessment of the formal requirement takes place before and independently from the substantive examination.
The inventor has to be a person with a legal capacity. The Legal Board of Appeal also refused the auxiliary request according to which no person had been identified as inventor but merely a natural person was indicated to have « the right to the European Patent by virtue of being the owner and creator of » the artificial intelligence system DABUS, ruling that a statement indicating the origin of the right to the European patent under Article 81 has to be in conformity with Article 60(1) EPC. Further, it decided that the EPO was competent to assess this.
Thus, under the current provisions the inventor has to be a person with a legal capacity.