On 21 September 2021 the England and Wales Court of Appeal upheld the December 2019 decision of the United Kingdom Intellectual Property Office and a September 2020 England and Wales High Court decision. The verdict stated that artificial intelligence cannot be a listed inventor on a patent.
Stephen Thaler, the CEO of Imagination Engines had applied to list his artificial intelligence machine, ‘DABUS’, as the inventor behind two patent applications.
The Court of Appeal ruling was a split 2:1 decision with Lord Justice Arnold stating that is “implicit” in the wording of section 13(2) of the Patents Act “that only persons can be inventors” Lord Justice Arnold stated that Doctor Thaler did not identify “the person or persons whom he believes to be the inventor” as required. “The fact that he may genuinely have believed that DABUS was the inventor is neither here nor there. The answer he gave to the question was a legal impossibility.”
Lady Justice Elisabeth Laing agreed with Lord Justice Arnold. However, Lord Justice Birss gave the opinion that the appeal should be allowed. Lord Justice Birss stated that, “at first sight and given the way this appeal is presented by both parties; the case appears to be about artificial intelligence and whether AI-based machines can make patentable inventions. In fact, this case primarily relates to the correct way to process patent applications through the Patent Office and turns on material which was either buried in the papers but ignored in the written and oral argument, or not referred to at all. It is an object lesson in the risks of advocacy being distracted by glamour. The fact that the creator of the inventions in this case was a machine is no impediment to patents being granted to this applicant.”
Due to the 2:1 split decision it is now likely that the United Kingdom Supreme Court will be asked to decide whether artificial intelligence machines can be named as an inventor under United Kingdom law.