Artificial intelligence outsmarting the human perception of what is patentable? - An EU examination of the patentability of artificial intelligence

Abstract: Artificial intelligence challenges IPRs and patent is the legal field in focus for this thesis. The thesis examines if artificial intelligence can be the inventor of its own invention. Thereafter central questions to granting a patent by focusing on the second patent requirement in art. 56 EPC - the inventive step. The inventive step covers the technical character and non-obvious to a person skilled in the art. As of May 2018, there are no cases from the BoA clarifying if artificial intelligence can be the inventor of its invention. Doctrine has covered this topic and concludes that there is a difference between inventorship and ownership. The right for the inventor to be mentioned is a formal requirement in the patent application. The requirement is interpreted from the VCLT and the BoA case law in the thesis. But they do not address the question since the inventor is not a substantial requirement for a patent leaving room for interpretation. Even though it is not possible right now for artificial intelligence to be acknowledged as the inventor there is an interesting discussion in doctrine why it should be considering the divide between inventorship and ownership. Artificial intelligence needs to be categorised under a physical or a legal person to be an inventor. The conclusion is to categorise it under legal person. However, the thesis elaborates the problems with this suggested solution as well. Artificial intelligence needs to be categorised since leaving it uncategorised means that it cannot be the inventor unless the legislation changes. Further, what problem the patent requirement inventive step consisting of the technical character and the person skilled in the art impose on artificial intelligence is examined. The assessment of the technical character and the fact that it should be non-obvious to a person has shifted from the contribution approach to the problem-and-solution approach. Since the new approach requires a higher standard a mix between these two approaches is suggested for a more flexible application. The fictional person which has been defined in case law and the meaning of not obvious is complex and for this assessment of the inventive step the contribution approach is likely to be more suitable. By changing to the problem-and-solution approach it has allowed the EPO to have a higher standard for patent applications however, then a dynamic application should be applied since artificial intelligence is being examined under computer software. The fact that the artificial intelligence is nontangible can make the examination more difficult but with a dynamic application of the inventive step artificial intelligence can be patented while upholding the high standard.