On 6 July 2022 the European Patent Office's Legal Board of Appeal published its reasoned decision J0008/20 explaining why it refused Dr Thaler's appeal at the end of the oral proceedings held on 21 December 2021. The decision establishes very important principles in law in relation to the patentability of inventions created by AI systems, that is AI‑generated inventions.
I represented Dr Thaler in the EPO proceedings as part of the DABUS team and set out my commentary on the decision below and in the attached article.
While the decision rejected Dr Thaler's appeal, the decision accepted some of the fundamental legal points raised. The Legal Board of Appeal even suggests how an applicant can obtain a European patent for AI-generated inventions. Some of those findings are applicable, for reasons I set out below, to other jurisdictions and arguably to the laws of most countries in the world.I do not agree with some of the reasoning of the Legal Board of Appeal and explain why below. However, as there are numerous appeals currently pending in other jurisdictions, I am deliberately not addressing a number of issues pertaining to these cases, including for instance the question of Dr Thaler's entitlement to the DABUS inventions. I therefore restrict my comments to the relationship between the law as set out in the European Patent Convention and the laws of the contracting States.
In summary, the Legal Board of Appeal held that:
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