As of yesterday (28th January 2020) the EPO have made ground-breaking decision on patentability. This decision was put into force following two patent applications namely: EP 18 275 163 and EP 18 275 174.
These patent applications were refused by the court proceedings that commenced: November 2019. Both inventions were deemed not to meet the legal requirements for the EPC stating AI machines cannot be classed as an inventor, but the inventor must be a human being. AI is an ever-growing area in everyday lives and this decision brings some limitation to patentability.
In both the applications stated above, (the ‘DABUS’ invention) the inventor field was not completed. The application for EP 18 275 163 was given the opportunity to be amended in accordance with Article 81 and Rule 19(1). The DABUS was later filed noting the DABUS (the machine) to be the sole inventor: ‘a type of connectionist artificial intelligence’. The human inventor behind the DABUS tried to negotiate the clause by noting that he was to be named ‘the machine successor’ and therefore could still be assigned IP rights as a named employer. The patent application failed due to the points above.
The EPO are not the only ones to have come to this decision. It was noted that the term inventor is widely understood and is an internationally applicable standard in patent law. As a result, many foreign courts have already accepted a ruling similar to the above.
It could be said that, one of the more pressing reasons to label the inventor as a human being is the legal consequences and rights that the inventor needs to understand/ comply with. An AI system is unknown as to whether they are able to compute information (such as legal consequences/ rules) as objectively as a human being. A human being can exercise rights of being labelled as a product inventor and have what is known as ‘legal personality’.
As we are yet to discover the power of AI. Having an invention that may have been created by a human being, but includes elements of AI, such as an Alexa causes problems in patent law. We do not know the growth capacity and power that the machine can compute and therefore the problem of liability still occurs. Court rulings state that a patent needs to be ‘an inventor designated in the application has to be a human being, and not a machine’ limits the risk of AI getting ‘out of control’ but cannot hinder this risk completely.
Obtaining a patent in a world where AI use is prevalent is becoming increasingly harder. AI and patents means that it is more complicated to protect your invention and have the same rights as anyone else’s ‘human made’ invention. The problem with moral rights and protection of human inventors is important in the advancement of patent law.