There are plenty of stories about the likelihood of AI taking over jobs and roles normally done by humans. Even back in 2015, the BBC was sufficiently concerned to provide a helpful page entitled “Will a robot take your job?” More recently, the patent profession has been wondering whether Artificial Intelligence might take over the inherently creative role of inventor. In a couple of recent moves, both the European Patent Office and the U.K. Intellectual Property Office have indicated that they are not yet ready to take this step.
European Patent Office (EPO)
Sixteen short minutes of deliberation in late December were enough to allow the EPO to refuse two recent European patent applications designating an AI inventor. The two applications claimed a fractal food container (EP 18275163) and fractal light signals (EP 18275174). In submissions to the EPO, the applicant emphasized that it did not contribute at all to these inventions. This raised the question of ownership, and the applicant’s right to the invention: how did the applicant derive rights to the invention from the named AI inventor? The applicant made a couple of attempts to address this question: first, he argued that he was the AI’s employer; then he claimed that he was the successor-in-title to the patent rights as the AI’s owner.
In addition, the applicant also argued that:
- accepting AI systems as inventors would allow the applicant to indicate the truthful inventor; and
- not accepting AI systems as inventors would unfairly exclude inventors made by AI from patentability.
Rather than engage with the more fundamental and potentially thornier issue of whether AI is capable of invention, in these cases the EPO focused primarily on ownership. The EPO argued in advance of the final hearing that machines do not have legal personality and cannot own property. Therefore, a machine cannot own rights to an invention and cannot transfer them within an employment relationship or by succession to the applicant. As a result, the applications were refused for improper designation of the inventor (Article 81 and Rule 19 EPC).
UK Intellectual Property Office
The UK IPO took an alternative approach to ruling out AI inventors. To anticipate applications being filed naming AI inventors, the UK IPO recently updated its Manual (section 3.05) to clarify that an AI inventor is not recognized as a person under the law:
Where the stated inventor is an ‘AI Inventor’, the Formalities Examiner request a replacement F7 [Statement of Inventorship and of Right to Grant of a Patent]. An ‘AI Inventor’ is not acceptable as this does not identify ‘a person’ which is required by law. The consequence of failing to supply this is that the application is taken to be withdrawn under s.13(2) [of the U.K. Patents Act].
It is unlikely that this will be the last word on this topic. The applicant may file an appeal in one or both of the European applications, and there will likely be other efforts to explore whether and how AI might be recognized as an inventor.
For the moment, however, we humans will have to rely on our own inventiveness for the purposes of obtaining patents in Europe and in the U.K.
For more information, please contact Will Murphy.