Patents: AI machine cannot be inventor

Summary 

The Patents Court has dismissed a patent application by an individual which named an artificial intelligence (AI) machine as inventor because an inventor must be a natural person.

Background

Section 7 of the Patents Act 1977 (section 7) (1977 Act) provides that "any person" may make an application for a patent either alone or jointly with another. A patent for an invention may only be granted to: the inventor; any person entitled to the whole of the property in an invention; or their successors in title (section 7(2)). "Inventor" in relation to an invention means the actual deviser of the invention (section 7(3)).

In Yeda v Rhone-Poulenc, the House of Lords held that section 7 exhaustively determines who is entitled to the grant of a patent and that the actual deviser of the invention was the natural person who came up with the inventive concept (www.practicallaw.com/0-379-7623).

An applicant for a patent must file with the Intellectual Property Office (IPO) a statement identifying the person or persons whom he believes to be the inventor (section 13, 1977 Act) (section 13).

In September 2020, the IPO issued a call for views on the position of AI within UK patent law.

Facts 

T filed two patent applications in his own name. The accompanying form stated that T was not an inventor of the inventions specified in the applications. 

T filed statements of inventorship for both applications stating that the inventor was an AI machine called DABUS and that T had acquired the right to grant of the patents in question by virtue of his ownership of DABUS. 

The IPO decided that a natural person had to be identified as the inventor and that the naming of a machine as inventor did not meet the requirements of the 1977 Act. As it was not a person, it could not own intellectual property so had nothing to transfer to T, and the law did not provide for any intellectual property rights to be owned by the owner of the machine. T appealed.

Decision

The court dismissed the appeal.

The court rejected T's argument that he had complied with section 13 by identifying who he believed to be the inventor, DABUS, and how he derived his right to be granted a patent for the invention, by virtue of his ownership of DABUS. T's subjective belief alone was not sufficient to entitle him to the grant of a patent. Section 13 must be read in the context of section 7, which provides an exhaustive code for determining who is entitled to the grant of a patent. The presumption that the person who makes the application is the person entitled to be granted the patent is rebuttable. The IPO can reject applications where the applicant's belief regarding the identity of the inventor, or their entitlement to be granted a patent for the invention, are incapable of justification under the scheme set out in section 7. 

Section 7(1) clearly limited the right to apply for a patent to "persons" and it was common ground that DABUS was not a natural or legal person. The court considered whether the term "inventor" under the 1977 Act should be extended beyond natural persons…