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EPO Board of Appeal Publishes Reasons for Refusing Applications with Non-Human Inventor

As previously reported, at the end of last year the EPO’s Legal Board of Appeal rejected the European applications of Stephen Thaler which attempted to name a computer system (DABUS) as the sole inventor. At the time the EPO only issued a brief Press Communiqué, with the full written decision being reserved in the usual manner. Yesterday the Board of Appeal’s full written decision was published.

As expected, whilst going into more detail on the legal background, the written decision confirms the key points highlighted in the Press Communiqué, namely that the applicant’s main request (to name DABUS as the inventor) does not comply with the EPC because it does not name a person with legal capacity, and that the auxiliary request (stating that no person was identified as the inventor) fails to comply with the requirement to indicate how the applicant derives its right to the invention.

On the latter point, whilst accepting that if there was not an “inventor” (i.e. a person who has conceived the invention), then it is arguable that the EPO’s requirement to designate one (Article 81 EPC) does not apply, the Board indicated that, in accordance with the later requirements of Article 81 EPC, where the inventor and applicant differ it is necessary to provide a statement on the origin of the right to the invention. The applicant’s statement in the auxiliary request that he had derived the right to the invention as “owner and creator of the machine” was invalid as it “does not refer to a legal situation or transaction which would have made him successor in title of an inventor”. This statement is a common thread in the decisions in various countries on the DABUS-originating applications and demonstrates that the headline-seeking arguments about whether AI can be named as an inventor or not are largely irrelevant whilst laws do not provide for legal or natural persons to acquire rights from computers (and indeed for computers to be capable of “owning” such rights in the first place).