The United States Patent Office (USPTO), the European Patent Office (EPO) and the United Kingdom Intellectual Property Office (UK Intellectual Property Office) were asked this question. These bodies received two patent applications concerning a beverage container and a flashing device (light signals using fractals). The EPO assigned the applications numbers: EP 18 275 163 and EP 18 275 174. In both patent applications, the inventor was not indicated as a natural person, but a machine called DABUS, which is artificial intelligence.
DABUS is an artificial intelligence system made up of neural networks that was created by Stephen Thaler from the University of Surrey in the UK. The machine can generate ideas and create inventions without human intervention.
The authors of DABUS are trying to regulate the situation in which artificial intelligence has developed a solution that is then the subject of a patent application. Patent offices around the world require that the creator of the invention be indicated in the patent application. In principle, the creator is entitled to obtain a patent. The question is what if the creator is artificial intelligence? Who should be entitled to obtain a patent in such a situation? Applicants for the above inventions provide several possible solutions, indicating: the creator of the AI, the creator of the software or the authors of the data processed by the artificial intelligence. The most correct position seems to be the entity responsible for creating the artificial intelligence. In such a case, it would be worth considering introducing a regulation enabling the indication in the application of the entity responsible for the inventive project. However, this would require recognizing that AI can create an invention.
Faced with the above issues, after hearing the Applicant’s arguments, the European Patent Office rejected both applications EP 18 275 163 and EP 18 275 174 on 25 November 2019 on the grounds that they did not meet the EPC requirement that the inventor designated in the application must be a human being and not a machine. A reasoned decision can be expected in January 2020.
The UK Patent Office has moved in a similar direction.
In the US legislation on the above issue, an inventor is defined as “an individual or, in the case of a joint invention, the persons collectively who invent or discover the subject matter of the invention.” Those who support granting AI invention rights argue that the term “person” allows for a broad interpretation and does not necessarily exclude AI from recognition as an inventor.
The Polish doctrine holds that the creator of an inventive project is a natural person who has “invented” a solution, i.e. created a new intellectual good that did not exist before (J. Szwaja in: J. Szwaja, A. Szajkowski, System prawa prawa przemysłej, vol. 3, p. 78). The creator of an inventive project is a natural person who has contributed to the completion of this project by contributing intellectual work that goes beyond routine technical or organizational assistance (A. Szewc, G. Jyż, Prawo prywatna, 2003, p. 117). Therefore, the creator of an invention under Polish law can only be a natural person.
It seems that the above case concerns the issue of the empowerment of artificial intelligence, i.e. the possibility of recognizing it as the creator of an invention. In the current state of technological development, the phenomenon of creativity of artificial intelligence is becoming more and more common. Granting rights to AI will certainly set a precedent, similarly to the case of animals, which were granted the right to life and the right to freedom from suffering. Patent law may therefore become a contribution to the discussion on the status of artificial intelligence and granting it rights.
