EPO publishes AI patent rejection decision
The Board of Appeal has revealed why it was unconvinced by arguments from the DABUS team.
The European Patent Office’s (EPO) Board of Appeal has explained its reasoning for rejecting two European patent applications to list an artificial intelligence (AI) as a named inventor on a patent.
While the written decision was published yesterday, July 6, the Board of Appeal actually handed down its decision in December last year.
At the time, the appeal board held that an inventor designated in a patent application “must be a human being”, in line with article 81 of the European Patent Convention.
The team behind the AI, known as DABUS, had filed patent applications at the EPO, and in the UK, Australia, South Africa and other jurisdictions, listing the AI as an inventor.
In the newly-released written reasoning, the appeal board concluded that the designation of the inventor doesn’t comply with article 81 of EPC.
The board added: “The existence of a subsequent practice or agreement which could allow the board to overcome the language of the treaty was neither argued nor shown in these proceedings. The decision from the English Court of Appeal supports the opposite theory: the term inventor was not interpreted as covering an apparatus or a device.”
In September last year, the English Court of Appeal rejected physicist Stephen Thaler’s latest bid to list his artificial intelligence (AI) machine DABUS as an inventor in a 2:1 decision.
“The further policy arguments made by the appellant, based on the right of the public to know how the invention was made or fairness concerns, cannot change an interpretation based on the plain language of the EPC. They are also not convincing,” said the decision.
In addition, the Board of Appeal refused the applicant’s auxiliary request—which relied on the argument that the EPC doesn’t apply where the application doesn’t relate to a human-made invention—and the applicant’s request to refer two questions on the applicability of article 81 to the Enlarged Board of Appeal.
“There are two conceivable objections to the board’s conclusions on the auxiliary request and the request for a referral. In the board's view these objections share a weakness: in order to consider them and set aside the decision under appeal it would be necessary to fully ignore a formal requirement of the EPC,” said the written decision.
The board said it wasn’t convinced that there’s a problem of unequal treatment of specific applicants and categories of inventions which is in conflict with the objective purpose of the EPC.
It said: “The board is not aware of any case law which would prevent the user or the owner of a device involved in an inventive activity to designate himself as inventor under European patent law.
The EPO said it had taken note of the written decision and welcomed the clarification on the topic of AI named as inventor.
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