To be or not to be an inventor, that is the question!

After South Africa, it is Australia’s turn to grant the right to an artificial intelligence to be named as an inventor in a patent application. The United Kingdom, Germany, Europe and the United States have decided to reject the patent application.

The artificial intelligence in question named DABUS by its creator, Dr. Stephen Thaler, autonomously created a food container based on fractal geometry with innovative thermal properties. However, it is not the invention in itself that marks a turning point but the fact that DABUS is now presented as the sole inventor. Indeed, it is now accepted that some AIs are capable of carrying out inventive missions in the same way as humans.

But should an AI be able to be named as an inventor and its creator as a patent applicant?
The European Patent Office disagrees, since it rejected the patent application for failing to comply with the requirements of Article 81 EPC concerning the designation of the inventor. In the present case, the applicant (here the creator of the AI) is not the inventor, the designation of the inventor must therefore include a declaration indicating the origin of the acquisition of the right to the patent by the applicant.

However, for the legislator, the term « inventor » necessarily refers to a natural person. For example, assuming that an AI can be named as an inventor, and the AI ​​refuses to sign, for example, a declaration of invention or an assignment, how do you go about compelling a signature? The identification of a disembodied entity as an inventor should logically provide that entity with the rights and obligations incumbent on all human beings, i.e. legal personality.

However, to this day, things such as Artificial Intelligence have no legal personality and therefore have no rights. Following the failure to correct the inventor designation on the part of the applicant, the European Patent Office therefore notified the rejection of the patent application.

The American Patent Office seems to have granted its violins to the European Patent Office since it rejected the patent application for the same reasons, and unless the legal texts are amended, it is difficult to imagine a reversal of the situation from these Offices.

The applicant, however, appealed to the European Patent Office to challenge the rejection decision.

Case to be followed at the end of 2021 for the decision of the Board of Appeal!

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