Stephan Schultes discusses whether AI machines that create patentable inventions have any legal rights of inventorship at the UKIPO.

There is a legal grey area surrounding inventions created by artificial intelligence (AI) machines, particularly as to whether AI machines should be recognised as inventors on patent applications and, if so, who owns the rights to those patent applications.

To test the legal position in various jurisdictions, a team at the University of Surrey, UK, filed patent applications1 naming an AI machine, "DABUS", as the inventor. DABUS is a "creativity machine" that can generate inventions autonomously without being trained to solve any particular problem. A first application describes a beverage container having walls with a fractal profile that allow several such containers to be secured together. A second application describes a warning light that flashes in a fractal sequence to allow better recognition by a human eye.

The European Patent Office (EPO), the United Kingdom Intellectual Property Office (UKIPO), and the United States Patent and Trademark Office (USPTO) have all refused the applications.2 All three Patent Offices reasoned that their respective patent statutes permit only "natural persons" to be named as inventors, and not machines. As such, naming DABUS as an inventor did not comply with the respective legal provisions. On a more fundamental level, the EPO and UK IPO questioned whether AI machines held any legal rights, including rights that would allow for the transfer of ownership of the applications from DABUS to the applicant, Dr. Stephen Thaler (the developer of DABUS). The EPO and UK IPO both considered that this was not the case, so that the applicant was not entitled to the European and UK patent applications.

The decisions of the EPO, UK IPO and USPTO are being appealed.

While there is a legitimate question as to how or whether patent systems should handle inventions created by AI machines, it seems that a change in law, either giving machines legal rights or dispensing with the requirement to name a natural person as the inventor, would be required to answer this question.

Footnotes

1. European patent application nos. EP18275163.6 and EP18275174.3, UK patent application nos. GB1816909.4 and GB1818161.0; and United States Patent Application No. 16/524,350.

2. www.ipo.gov.uk/p-challenge-decision-results/o74119.pdf,  www.uspto.gov/sites/default/files/documents/16524350_22apr2020.pdf

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