Artificial intelligence may be advanced but, at least so far as patent law is concerned, it has yet to overcome the human monopoly on inventiveness. The point was made by a Court of Appeal test case concerning devices that were said to have been invented by a machine without any need for human input.

The creator of an AI machine applied to the Intellectual Property Office (IPO) for a grant of patents in respect of a food container and a form of flashing light. On the application forms, the machine was identified as the inventor of the devices. The applicant eschewed any claim to inventorship and asserted that the devices were entirely and solely conceived by the machine.

There was no suggestion that he had filled in the forms other than in accordance with his genuine and honest beliefs. The IPO, however, treated the applications as having been withdrawn on the basis that his statements of inventorship failed to satisfy Section 13(2) of the Patents Act 1977. The applicant's challenge to that decision was subsequently rejected by a judge.

Dismissing his appeal against that outcome, the Court found that, on a true reading of the Act, only a natural person can be an inventor. The machine had no legal personality or capacity and any assertion that it had assigned its rights in respect of the devices to the applicant was therefore a legal impossibility. As a matter of law, he could not derive a right to be granted the patents from his ownership of the machine.

The applicant did not identify any person or persons whom he believed to be the inventor or inventors of the devices, as required by Section 13(2)(a) of the Act. On the contrary, he deliberately identified a non-person. Having failed to comply with the statutory requirements, the fact that he genuinely believed that the machine was the inventor was neither here nor there.

For expert advice on any matters relating to intellectual property, contact Julian Milan j.milan@sydneymitchell.co.uk 08081668827.

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