A machine is not an inventor within the meaning of the EPC

The EPO's Legal Board of Appeal have issued their written decision in case J 8/20, confirming that "a machine is not an inventor within the meaning of the EPC". 

Case J 8/20 relates to inventorship and DABUS, a name now familiar to many. DABUS is an artificial intelligence created by Stephen Thaler. Several patent applications have been filed in multiple countries which name DABUS as the inventor. Many of the applications (perhaps all?) have encounter legal difficulties, since it is generally expected that an inventor is a human, not an AI. Case J 8/20 relates to one of the applications filed at the EPO. The patent application was refused by the EPO as it did not comply with the formal requirement to designate a natural person as the inventor, instead designating DABUS as the inventor. The decision to refuse the application was appealed to the EPO's Legal Board of Appeal. In their decision, the Board have dismissed the appeal, noting that a machine is not an inventor within the meaning of the European Patent Convention (EPC). In particular, the Board note in paragraph 4.3.1 that "Under the EPC the designated inventor has to be a person with legal capacity" and "[t]his is not merely an assumption on which the EPC was drafted" but "[i]t is the ordinary meaning of the term inventor (see, for instance, Oxford Dictionary of English: "a person who invented a particular process or device or who invents things as an occupation"; Collins Dictionary of the English language: "a person who invents, esp. as a profession")".

The written decision follows the recent publication of the UK government's response to their consultation regarding, amongst other things, patent protection for AI-devised inventions (see here). In the UK government's response, the UK government decided that no changes to the current law are required in this matter, meaning that it is still necessary to name a human as the inventor in order to obtain a UK patent.

From a practical point of view, the recent decision from the EPO, and the UK Government's recent comments, do not appear to present any real issues for applicants. There is always a human involved somewhere in the inventive process. Whether it's in setting up and training the AI, or even in the identification of an invention in one of the outputs of the AI, it should always be possible to name a human as an inventor and satisfy this formal requirement.