On April 22, 2020, the United States Patent and Trademark Office issued a decision in which it concluded that an artificial intelligence system could not be recognized as an inventor in a US patent application.
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On April 22, 2020, the United States Patent and Trademark Office (“USPTO”) issued a decision[1], in which it concluded that an artificial intelligence (“AI”) system could not be recognized as an inventor in two US patent applications. As a matter of fact, the latter listed as single inventor a “creativity machine” named “DABUS”, a type of connectionist AI system composed by a series of neural network trained with information relevant to the field of technology (“DABUS”). Within the two applications, the inventor of DABUS – Mr. Stephen L. Thaler – identified himself as the legal representative of DABUS and the applications’ assignee.
After a first dismissal by USPTO as the applications were incomplete, Mr. Thaler then filed a petition requesting reconsideration of such dismissal on the grounds that inventorship should not be limited to natural persons, and therefore, that naming DABUS as the inventor was proper.
Notwithstanding this second attempt, USPTO ruled that only natural persons are eligible as inventors. To reach this conclusion, USPTO relied on the relevant U.S. patent legislation and relevant U.S. case law: on the one hand, the decision refers to Section 35 para. 100 let. f) of the United States patent Code, which establishes that an inventor is an “individual” – or “individuals”, in the case of joint inventors – that discovered the subject of the invention.
On the other hand, the USPTO surveyed U.S. Courts’ decisions, which have always required an inventor to be a natural person: as a matter of fact, only a natural person is capable of performing the act of conception, as described in the relevant case law.
Based on the above, the USPTO concluded that current U.S. patent law and relevant case law exclude AI systems to be considered as “inventor”.
On January 22, 2020, the European Patent Office (“EPO”) reached the same conclusion: it refused the same two patent applications submitted by Mr. Thaler indicating DABUS as inventor (see our previous comment on EPO’s decision here).
[1] United States Patent and Trademark Office, decision on petition of April 22, 2020 – full decision accessible here.
