Abstract
This article uses the advancements in artificial intelligence as the starting point for consideration of the role of human inventorship in European patent law. It argues that human inventorship is a necessary condition for the existence of an invention and inventive step, with the result that only products of human inventorship merit European patents. It identifies failings of European authorities to reflect this adequately in their approaches to determining patentability. Finally, it recommends recognising human inventorship as an implicit patentability requirement being an aspect of the statutory requirements for an invention and inventive step and extending applicant's disclosure duties correspondingly.
Original language | English |
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Pages (from-to) | 338-365 |
Number of pages | 28 |
Journal | The Cambridge Law Journal |
Volume | 80 |
Issue number | 2 |
DOIs | |
Publication status | Published - 28 Jun 2021 |
Bibliographical note
Funding Information:* DPhil candidate, CDT in Cyber Security and Faculty of Law, University of Oxford. This article incor-porates the author’s doctoral research which is funded by the Engineering and Physical Sciences Research Council (EPSRC). Address for Correspondence: St Cross College, 61 St Giles’, Oxford, OX1 3LZ, UK. Email: [email protected]. I am grateful to Professor Justine Pila for her comments on earlier versions of this article and to the attendees at the European IP Institutes Network Innovation Society (EIPIN-Innovation Society) conference in January 2020 for commenting on the first draft of this article. 1 European patent applications EP 18 275 163 and EP 18 275 174 were refused by the EPO in a reasoned decision of 27 January 2020, appeal pending. In the UK, two patent applications GB1816909.4 and GB1818161.0 designating DABUS as the inventor were refused by the UK IPO’s decision BL O/741/19 of 4 December 2019. On appeal, they were halted by the High Court in Stephen Thaler v The Comptroller-General [2020] EWHC 2412 (Pat), [2020] Bus.L.R. 2146. An appeal to the Court of Appeal is pending: Simmons-Simmons, “Court of Appeal to Consider If AI System Can Be a Patent Inventor”, available at https://www.simmons-simmons.com/en/publications/ckk2ji0621ai-p0954oyl31re9/court-of-appeal-to-consider-if-ai-system-can-be-a-patent-inventor (last accessed 4 February 2021).
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