DABUS at the European Patent Office: who can be named as the inventor when AI creates something?
In a recent decision of the European Patent Office (EPO) technical board of appeal, an appeal in the long-running “DABUS” saga failed. DABUS is an artificial intelligence system designed and owned by a human individual, who has spent years trying to obtain patent protection for a food container he claims was independently invented by DABUS. The core question here is: can an AI system be named as an inventor together with a human inventor?
The EPO requires every patent application to designate at least one human inventor; however, it does not check whether the named inventor truly devised the invention but requires that the designation of inventorship clearly and unambiguously identifies a human being.
As reported in our earlier legal update Preview of UK Supreme Court appeal: inventorship and entitlement to AI inventions - DABUS, earlier patent applications at the UK intellectual property office and EPO had named DABUS itself as the inventor (and with no human inventor being listed). These patent applications were refused because no human inventor was listed. In a new European patent application stemming from one of the original applications, called a divisional application, the human individual tried an alternative route which was to name himself as inventor, but in an addendum explain that DABUS had independently conceived the idea and that the human inventor was not an inventor under traditional criteria. The EPO refused the new application, stating that the primary document naming the human as the inventor and the addendum naming DABUS as the inventor contradicted each other, thus not meeting the clear and unambiguous identification requirements of the EPO.
In the recent appeal, this decision was upheld. The patent applicant attempted several avenues of challenge, including softening the wording of the addendum to include that the human had “caused DABUS to conceive” the invention. The EPO found that these still pointed away from the human as the true inventor and rejected them for the same reason of not clearly and unambiguously identifying a human being. A final submission, naming the human as the sole inventor without any addendum came in too late; the EPO noted that although this “prima facie overcomes the issue of designation of the inventor”, it could not be admitted as it was not submitted in time. With every challenge either rejected or not admitted, the appeal was dismissed and the original refusal of the patent application stood.
What this means in practice/conclusion
Importantly, the decision does not say that inventions developed with AI assistance cannot receive patent protection. It can be argued that European Patent Office law on what counts as a patentable invention do not depend on how the idea was reached. Where AI played a role, the EPO confirmed that it is generally possible to identify one or more human individuals who contributed to the invention (reasons 1.6), though it declined to define what degree of human contribution is sufficient to facilitate strong patent protection.
One thing is clear: a European patent application must clearly and consistently name a human inventor without attached commentary that contradicts that statement.
