A UK appeals court has ruled that an artificial intelligence cannot be considered an inventor for the purposes of granting patents.
The decision by the England and Wales Court of Appeal is a blow to a long-running campaign to grant more legal rights to AIs.
But the panel of three judges was split, with one saying the AI in question could have been listed as an inventor.
Dr. Stephen Thaler filed two UK patent applications in October and November 2018 for a food container and a flashing light.
He listed not himself, but his AI Dabus as the inventor, with the patents to be ascribed to him as the owner and operator of Dabus.
In 2019 the Intellectual Property Office found that the “creativity machine” Dabus was not a person for the purposes of granting patents, and considered the applications as withdrawn. The decision was upheld by the High Court in September 2020.
In the Court of Appeal ruling Lord Justice Arnold and Lady Justice Elisabeth Laing upheld the High Court’s ruling, but Lord Justice Birss would have allowed Thaler’s patents to proceed.
Lord Justice Arnold said Thaler had created a “legal impossibility” by identifying a non-person as the inventor, and had also failed to indicate why owning Dabus gave him rights to the patent.
“In my judgement it is clear that, upon a systematic interpretation of the 1977 Act, only a person can be an ‘inventor’,” he wrote.
Lady Justice Elisabeth Laing agreed, writing, “Only a person can have rights. A machine cannot. A patent is a statutory right and it can only be granted to a person.”
Lord Justice Birss interpreted the law differently, concluding that Thaler believed there was no human inventor involved, and therefore he was not obliged to include the name of the inventor.
In such a situation the IPO “is is not obliged to name anyone (or anything)” as the inventor, he wrote.
He also decided there “is a rule of law” that gave Thaler the right to apply for a patent on the basis that “he created, owns and operated Dabus”.
Lord Justice Birss also said the case would have been simpler if Thaler “was not such an obsessive”.
If “instead of calling Dabus the inventor, he named himself… then none of these problems would arise,” he wrote.
Thaler’s legal team indicated he would appeal to the UK Supreme Court, saying the dissent of Lord Justice Birss was encouraging.
Thaler has filed parallel patents around the world citing Dabus as the inventor, and won appeals in South Africa and Australia earlier this year.
Ed White, head of analytics, IP group at analytics provider Clarivate, said the Court of Appeal’s decision was a “reality check” after those wins, but he said Lord Justice Birss’ views represented a “significant and notable dissent”.
“Some form of change does still seem to be inevitable, with the reality being that AI has fundamentally, and permanently, disrupted the invention process and (is) playing an ever more central role in product design and development,” he said.
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