Key points
- The applicant essentially wishes to designate an AI tool as the inventor in this examination appeal.
- The Board: "the EPC requires that a legally capable person is named as the inventor"
- Just as a note, the Board does not say "natural person" or "human" but refers to "legally capable persons" (as in J 8/20). Let's suppose that this choice of words is intentional. Then, considering that in legal English, the term "person" is the genus of the species "natural persons" and "legal persons" (companies etc.), the phrase ""legally capable persons"" is not limited to human persons. Perhaps, one day, if a national law treats an AI agent as capable of some legal transactions (and/or if a national law recognises an AI agent as a proprietor of some rights, i.e. as a valid holder of a bitcoin wallet or bank account), it may turn out that J 8/20 left a small door open.
- "It must be considered that patent protection for an invention that was essentially developed using artificial intelligence (AI) would be impossible under the EPC, if natural persons were excluded from being regarded as inventors of AI-generated inventions, since, as indicated above, the EPC requires that a legally capable person is named as the inventor. "
- "the provisions on patentability under Article 52 ff. EPC do not rule out patent protection for AI-generated inventions. An invention involves an inventive step under Article 56 EPC if it is not obvious to a person skilled in the art in view of the prior art, which may also be the case for inventions developed by using artificial intelligence (AI). If an invention is developed using an AI-machine, this also requires some human input or influence, so that it is in principle not excluded to identify one or more natural persons to whom a causal contribution to the invention is attributable, and who can therefore be regarded as inventors within the meaning of the EPC.
- The Board thus concludes that, in principle, the designation of an inventor under the EPC is also possible for inventions developed using artificial intelligence (AI)."
- The appeal is dismissed.
- A divisional application has been filed already.
EPO
The link to the decision is provided after the jump.
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