AI cannot be the inventor of patents, UK court rules

Case brought by Imagination Engines CEO Stephen Thaler is struck down in the Court of Appeal

The UK Court of Appeal has ruled that artificial intelligence (AI) cannot hold ownership of new patents, in a two-to-one majority verdict.

The appeal was heard after Stephen Thaler, CEO of Imagination Engines, lost his case against the UK Intellectual Property Office (IPO) in November 2019, in which he claimed that his AI system could own the rights to two patents.

Lord Justice Arnold and Lady Justice Elisabeth Laing both argued that only a person can be classified as an inventor, and hold the rights associated with any creations.

In a dissenting opinion, Lord Justice Birss ruled that although “machines are not persons”, the wording of the law did not stipulate that a person needed to be named as the inventor.

"The fact that no inventor, properly so called, can be identified simply means that there is no name which the Comptroller [IPO] has to mention on the patent as the inventor," said Birss, underlining that the IPO is not obliged to name anyone or anything.

Birss added that if the applicant “was not such an obsessive” and had named himself as the inventor instead of the AI, none of these problems would arise.

As Arnold and Laing had the majority in the case, the appeal was dismissed.

The case emerged after Thaler made two patent applications in October and November 2018, one for a food container and another for a type of flashing light. In a statement of inventorship on 24 July 2019, Thaler claimed both devices were designed by his AI system DABUS.

The IPO responded on 8 August 2019, stating that Thaler had failed to comply with s. 13(2) of the 1977 Patents Act, which required him to identify a person as the inventor and to indicate how he had derived his rights from that person.

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Thaler requested a hearing and on 14 November 2019, in which the IPO decided that DABUS was not a person and, separately, Thaler was not entitled to apply for the patents simply by virtue of ownership of the AI. This decision was upheld by the High Court, and then again in the Court of Appeal.

In July this year, Thaler and the Artificial Inventor Project declared they had obtained the world’s first patent for an AI-generated invention, without a traditional human inventor, in South Africa. The patent is held by the AI’s owner, although the patent names the AI as the inventor.

In the same month, an Australian court also decided that AI systems can be legally recognised as an inventor in patent applications, as reported by ABC.

In 2019, academics called for a change to outdated patent laws in the UK to allow AI to legally author patented ideas. Academics from the University of Surrey teamed up with Thaler and intellectual property rights lawyers to file patents in a bid for it to be attributed to DABUS.

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