In the context of procedures J8/20 and J9/20, the Legal Board of Appeal of the European Patent Office confirmed the decisions of the Receiving Section of January 27, 2020 rejecting European patent applications EP18275163 and EP18275174 filed by Stephen L. Thaler and appointing as the sole inventor "DABUS", a computer system of the artificial intelligence software type.
The Board of Appeal considers that Article 81 – first sentence – of the European Patent Convention “The European patent application must include the designation of the inventor” applies only to an inventor with legal capacity. The Board of Appeal also specifies that this does not preclude the fact that an invention generated by an AI may be patentable within the meaning of Article 52(1) EPC.
Responding to an auxiliary request from the applicant on the question of the acquisition of the rights to the invention as the owner of the AI, independently of the designation of inventor required, the Board indicates that the question of the right to the patent is closely linked to that of the designation of inventor.
Indeed, even for inventions made by a machine, the terms of the second sentence of Article 81 EPC " If the applicant is not the inventor […], this designation must include a statement indicating the origin of the acquisition of the right to the European patent and Article 60 (1) EPC "The right to a European patent belongs to the inventor or his successor in title" must be respected.
The designated inventor cannot therefore be a machine, unfit to transfer rights. Stephen Thaler, although owner of DABUS, cannot thereby have acquired rights in the invention within the meaning of Article 81 EPC nor claim to be its successor in title within the meaning of Article 60(1) EPC.
The appeals are thus dismissed, and the patent applications EP18275163 and EP18275184 no longer produce any effect.
It is likely that the proceedings are closed, since the Board of Appeal also rejected the applicant's request to submit questions of law to the Enlarged Board of Appeal.