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Blog 8 Jul 2020

Who is entitled to an invention made by an AI?

Written by Rolf Suurmond

Blog series: Part 4

If an artificial intelligence can create an invention, can it also own a patent for it? Naturally, the law does not allow non-humans to have any properties. This is, by accident, clearly represented in the European Patent Convention:


Article 58 EPC: Entitlement to file a European patent application
A European patent application may be filed by any natural or legal person, or any body equivalent to a legal person by virtue of the law governing it.

A legal person is generally any business or society, that is given legal personality, or an intergovernmental institute such as the European Patent Office itself. Human beings are generally required to be in the Board of a legal person, and only human beings (possibly via a holding) can be shareholders of legal persons; all according to the national laws and international treaties. So an artificial intelligence cannot apply a patent for its creations for its own benefit. Do we now have sufficient information to conclude what to do with inventions made by an artificial intelligence? No.


Article 60: Right to a European patent
(1) The right to a European patent shall belong to the inventor or his successor in title. […]

In Article 60, the European Patent Convention stipulates that the right to the European patent shall belong to the inventor or his successor in title. Therefore, it all depends on who or what is an “inventor”, and who or what is his “successor in title”. The first question brings us back in a kind of circular reasoning to the beginning of the discussion, what is an inventor and when can you say that a machine is actually the inventor of an invention? Although this may be a tough question, we now also know from Article 58 EPC that, even if the machine is the inventor, the machine cannot file a European patent application, since only natural and legal persons can. If the machine-inventor would have a “successor in title”, the “successor in title” would have the right to a European patent application. But, if a machine cannot have any legal ownership or title, how can it have a “successor in title”? Let’s assume it can’t. The possible consequence would be that, if a machine would have to be regarded as the inventor, and there is no human inventor, nobody can apply a patent for it.


Having said that, of course we should realize that there is no case law on this topic yet. Quite likely the Courts will ultimately decide that a machine cannot be an inventor in the first place, because the European Patent Convention implicitly defined an inventor as a human being that can have certain rights. Quite likely, an involved human being will at some point be designated as an inventor, because that person had an intellectual contribution associated with the invention, for example the person who arrived at the idea to “ask the AI” for a solution to a particular technical problem, and/or reformulated the question in a way suitable for an AI. In the next post, I’ll explore what that situation could lead to.