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blog 24 Jun 2020

Can a machine be mentioned as the inventor in a patent application?

Written by Rolf Suurmond

Blog series: Part 3

Last week I asked myself some philosophical questions about whether a machine can make inventions. Let’s set aside these questions for now, and assume that yes of course, if a machine invents something then the machine is the inventor. Then, we still need to fulfill all the formal requirements of a patent application if we would like to have a patent for this invention.

The ‘inventor’ is a field that has to be filled in on patent applications. If the field is left blank, the patent application is refused. The laws describing this logic are worded slightly differently in each country’s national laws and in several international treaties, including the European Patent Convention. At the time these provisions were drafted, machines could not make inventions. Therefore, the legislators did not fine-tune the wording of these provisions to explicitly forbid or allow the mention of a machine as the inventor.

However, looking at the European Patent Convention, the wording clearly assumes that the inventor has certain rights that “(s)he” can exercise as desired. Also, the designation of the inventor has to include the family name, given names and full address, and how the applicant obtained the right to the invention from the inventor. Finally, if the indication of inventor does not include these particulars, the patent application shall be refused.

So, in my opinion it is clear that the patent laws would need some amendments if they are to support nonhuman inventors. However, since machines are not explicitly mentioned as not being eligible inventors, one could say that there is room for interpretation, which would be justified by the ‘factual situation’ that the machine is the one and only inventor. Unless the wording of the Patent Convention is clarified, we will have to wait for the decision from the Boards of Appeal on this issue.

Next week, I’ll shift the discussion from this purely formal requirement to the justification of ownership: who should be the owner of such an invention?

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Article 62 EPC: The inventor shall have the right, vis-à-vis the applicant for or proprietor of a European patent, to be mentioned as such before the European Patent Office.

Article 81 EPC: The European patent application shall designate the inventor. If the applicant is not the inventor or is not the sole inventor, the designation shall contain a statement indicating the origin of the right to the European patent.

Rule 19 EPC: (1) The request for grant of a European patent shall contain the designation of the inventor. […] The designation shall state the family name, given names and full address of the inventor, contain the statement referred to in Article 81 and bear the signature of the applicant or his representative. […]

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