Artificial intelligence and inventorship. The DABUS saga goes on but the path remains uphill

In a previous article of February 6, 2020, we discussed the EPO Receiving Section's refusal, in January 2020, of two European patent applications where an AI system called DABUS was indicated as the inventor1 . We then looked at the grounds of the decisions2 (concerning applications EP 18 275 163 and EP 18 275 174 for "food container" and "devices and methods for attracting enhanced attention"), and predicted that the EPO Board of Appeal (BoA) was bound to shed light on the novel and intriguing legal issue of whether a non-human, such as an artificial intelligence (AI), could be named as inventor in the system of the EPC. The BoA has now issued its decision, which is worth commenting. The applicant, one Mr. Stephen Thaler, had filed his appeals against the refusal (cases J 8/20 and J 9/20), along with an auxiliary request whereby no person was allegedly identified as inventor, but a natural person was indicated to hold "the right to the European Patent by virtue of being the owner and creator of" the DABUS AI system. By decision of December 21, 20213, the BoA dismissed the appeal, confirming that the EPC required the inventor to be a person with legal capacity.