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Why Artificial Intelligence Should Be a Legal Entity

The Legal Board of Appeal of the European Patent Office recently confirmed in merged proceedings J 8/20 and J 9/20 that the inventor named in a patent application must be a person under the European Patent Convention (EPC) and that an intelligence system cannot be considered named here.

Naming an inventor in terms of a non-person, an artificial intelligence system, is not permitted in patent grant proceedings before the European Patent Office, according to the Legal Board of Appeal. The Legal Board of Appeal upheld the decisions of the Receiving Section of the European Patent Office to reject applications EP 18 275 163 and EP 18 275 174, in which an artificial intelligence system called DABUS was named as inventor in application forms.

Following the hearing in proceedings J 8/20 and J 9/20, the Legal Board of Appeal dismissed the appeal and, in both cases, orally set out the basic reasoning that, according to the EPC, the inventor must be a person with legal capacity and an AI system is not sufficient to be named an inventor. At least for this reason, the main application with the designation of inventor DABUS was inadmissible. With regard to the auxiliary request, a statement indicating the origin of the right to the European patent under Article 81, second sentence, EPC should comply with Article 60(1) EPC.

Thus, the central issues for the rejection of the applications by the Legal Board of Appeal are based on the lack of legal capacity of the AI ​​system and the fact that the AI ​​system has not been qualified as a legal entity. . Both the designation as inventor and the transfer of the rights to the invention and in particular the right to the patent to the applicant are considered impossible by the legal board of appeal for an artificial intelligence system – in short a system of IA – due to the lack of legal personality of the IA system.

The two rejected European patent applications are part of a worldwide family of patent applications with the DABUS system as the inventor. DABUS is an AI system developed by patent applicant Stephen Thaler. It is thanks to the applicant and his active filing activity that corresponding cases relating to the same subject matter are pending before a large number of patent offices throughout the world. Thus, almost all important jurisdictions are occupied with the same questions on this exciting topic of artificial intelligence.

Still in the United States, Thaler versus Hirshfeldand in the UK, Stephen L Thaler v Comptroller General of Patents, Designs and Trademarks [2020] EWHC 2412 (Pat), patent applications from the same patent family were each rejected due to the naming of the DABUS system as the inventor, which was deemed abusive.

With the present decision of the Legal Board of Appeal of the European Patent Office, another court has now followed the currently prevailing view that artificial intelligence systems have no legal capacity and cannot be a legal entity having and transferring rights and obligations. This is justified in the dominant opinion by ensuring the primacy of the human.

Historically, the legal questions raised by the participation of artificial intelligence systems in everyday life as well as in the patent application procedure before patent offices around the world are reminiscent of the questions that arose during the decision on legal capacity. civil law partnerships in Germany, for which a recognition of legal capacity ultimately resulted from the practice and reality of legal acts, NJW 2001, 1056. BGH: Rechtsfähigkeit der (Außen-)GbR. Judgment of 29.01.2001 – II ZR 331/00.

This acknowledgment of reality was recently followed by a court in Australia, Thaler v Commissioner of Patents [2021] FCA 879and the South African Patent Office, both of which held that naming a non-person, an artificial intelligence system, as an inventor was permitted.

In his decision for Germany, 11W (pat) 05/21the Federal Patent Court took a pragmatic approach, which also did not allow the single naming of the AI ​​system, but allowed a co-naming of the AI ​​system without having to answer the question of the legal capacity of the AI ​​system. an AI system, which was probably considered too dogmatic.

The decision of the Legal Board of Appeal of the European Patent Office in proceedings J 8/20 and J 9/20 unfortunately did not react adequately to changes and innovations in the field of artificial intelligence and does not should certainly not be seen as particularly progressive in a global comparison and in the context of digitalisation, Industry 4.0 and other disruptive technologies.

As AI systems increasingly interact with humans in the invention and application of technology, these systems should also be granted legal personality, and naming them as inventors is certainly the simplest and most basic step here.