A Study on Inventorship in Inventions Involving AI Activity — Commissioned by the European Patent Office

Dr Noam Shemtov, Reader in Intellectual Property and Technology Law for the Centre for Commercial Law Studies at Queen Mary University of London produced this report on the how inventorship of AI inventions is handled by various members of the European Union.

With the science underpinning AI technology progressing in leaps and bounds in the last decade, and with AI systems becoming ever more sophisticated while involving a healthy dose of unpredictability, the impact of AI systems on various branches of the legal system is drawing an increasing amount of attention.

The concept of inventorship is key to the patent system, including the EPC. Thus, for example under the EPC, the right to a European patent belongs primarily to the inventor (Article 60(1) EPC). The inventor has both the substantive right to the invention (Article 60(1) EPC) and moral rights, in particular the right to be acknowledged and mentioned. These rights are safeguarded by Article 62 EPC (right to be mentioned), Article 81 EPC and Rule 19(1) EPC (obligatory designation of inventor, including indication of the origin of the right to the invention, if the applicant is not the inventor), Rule 19(3) EPC (communication to the inventor that he has been designated), Rule 20 EPC (publication of the mention of the inventor and a possibility of a waiver) and Rule 21 EPC (rectification of the designation of inventor).

Currently, under the EPC as well as under the vast majority of legal systems worldwide, only natural persons are considered to be inventors. However, as AI systems are becoming prominent in the invention­making processes in various areas of industry, it gives rise to the question of what is the desirable ambit of the inventorship concept. In other words, should the patent regime allow for AI systems to be considered as inventors and what may be the consequences of answering this question either affirmatively or in the negative? It is this question which is the focal point of this study.

Download the full study at the link below.