THE AI CONUNDRUM
The European Patent Office(EPO) on 27.01.2020 issued decisions refusing two
patent applications EP18275163.6 and EP18275174.3 for designating an artificial
intelligence(AI) machine named DABUS as inventor, on the grounds that such
designation did not meet the formal requirements under the European Patent
Convention(EPC) (Article 81, Rule 19(1) EPC).
According to the applicant, the inventions were autonomously generated by
DABUS, a type of “Creativity Machine” containing neural networks which are trained
with general information from various knowledge domains. The neural networks
selectively form and ripen ideas having the most novelty, utility and value. In this case
the two inventions were a plastic food container based on fractal geometry and a
flashing light to alert emergencies.
The applicant, common to both the applications, made the following main
contentions: that he did not contribute at all to these inventions; that he had acquired
the right to the European patent as DABUS’s employer which position was later
corrected to that of a successor in title; requiring that the designation of the inventor
indicate a natural person may be used to conceal the true identity of the inventor in
cases where the subject-matter of the application was developed without human
intervention, to the detriment of the public.
The EPO while refusing the applications reasoned that names given to things
may not be equated with names of natural persons which enable them to exercise their
rights and form part of their personality and that merely naming a thing would not
endow it with exercisable rights.
The EPO noted that there is no legislation or jurisprudence establishing a legal
fiction assigning a legal personality to the AI and therefore Al systems or machines
cannot have rights that come from being an inventor.
To the applicant’s contention that the EPC does not explicitly prohibit protection
for autonomous machine inventions, the EPO stated that the legal framework of the
EPC indicates a clear legislative understanding that the inventor is a natural person.
Further, no national law has been determined which would recognise a thing, in
particular an Al system or a machine, as an inventor.
With regard to the applicant’s claim of right to the patent as employer or
successor in title, the EPO held that machines/AI cannot be employed or transfer any
rights to a successor in title or have any legal title over their output which could be
transferred by operation of law or agreement. The EPO also held that the question of
ownership of output of a machine by the owner of the machine must be distinguished
from the question of inventorship and from the rights connected therewith.
In response to the applicant’s contention that that the EPO deemed at least one
of the claims of EP18275163.6 patentable, it was held that the formal requirements
laid down by the EPC are distinct from the patentability requirements and the
assessment of the former takes place prior to the assessment of the latter.
It may be noted that the European Parliament had in the year 2017 in its
recommendations to the European Commission on the Civil Law Rules on Robotics
suggested that robots be given a specific legal status of electronic persons. Against
this recommendation, artificial intelligence and robotics experts, industry leaders, law,
medical and ethics experts from the member states of the European union wrote an
open letter to the European Commission. The letter can be found at the URL
http://www.robotics-openletter.eu/ and at present has 285 signatories. The letter stated
that from an ethical and legal perspective, creating a legal personality for a robot is
inappropriate whatever the legal status model, be it the Natural Person model, the
Legal Entity model or the Anglo-Saxon Trust model.
From the decisions in EP18275163.6 and EP18275174.3, it can be said that
the EPO is in agreement with letter’s signatories. The applicant has two months from
the notification of the decision to file an appeal. The future course of action of the
applicant remains to be seen.
