Bonum Certa Men Certa

EPO Throws DABUS Under the Bus... But for the Wrong Reasons

Not the applicant is the problem

DABUS meme



Summary: The hype and 'hot air' (or various buzzwords) surrounding algorithms which do "something clever" (not a new thing!) persist; DABUS is being rejected only because it's non-human, which means that a human can reapply with the same so-called 'invention'

THE European Patent Office (EPO) abandoned patent quality quite some time ago and this became rather obvious when Team Campinos/Battistelli -- a nonscientific bunch with ex-military officers -- took control of the Office, promoting things they haven't a clue about. They simply lack background and qualifications. Today's (or yesterday's) EPO examiners are far more suitable for management jobs than existing managers, who are handpicked for connections (nepotism). As the old saying goes, it's not about what you know but who you know...



The news about DABUS was covered here quickly (when the EPO came out with the statement). It's related to the issue of the EPO granting software patents in Europe under the guise of "HEY HI" (AI), albeit not so directly. In Europe, "HEY HI" is routinely used as an excuse for granting illegal patents. Less than 2 months ago this was even integrated into examination guidelines (in effect since). The same semantic nonsense had been leveraged to bypass 35 U.S.C. €§ 101 at the U.S. Patent and Trademark Office (USPTO) -- another issue we covered here several times this year.

Since real journalism about patents is virtually dead the DABUS announcement was covered only by patent maximalists and their outlets. We know this for a fact because we've looked carefully until this morning. Who covered it and how?

"Since real journalism about patents is virtually dead the DABUS announcement was covered only by patent maximalists and their outlets."Well, the EPO mouthpiece IAM said (Joff Wild): "Whatever was decided once the first patent applications began to be assessed in which machines were specifically identified as inventors was going to matter, so in and of itself the EPO’s ruling is noteworthy. [...] Artificial intelligence is not going away, neither is invention by machine. Answers to the many IP questions this raises will have to be found – at legal, regulatory and strategic levels. And, of course, the subject is not confined to Europe, it is worldwide. If ever there was something for the major patent issuing authorities to be working on together, perhaps in concert with a WIPO expert group, this is it."

Sarah Morgan at World Intellectual Property Review wrote:

Late last week, the European Patent Office (EPO) refused two patent applications that list an artificial intelligence (AI) application as the sole inventor.

After hearing the arguments of the applicant, the EPO refused the European patent applications as they don’t meet the requirement that an inventor designated in the application has to be a human being, not a machine.

Dabus, the AI application that is named as inventor on both of the patents, is said to have designed a type of plastic food container and a flashing beacon light.


Law360, another outlet of patent maximalists, wrote this:



The European Patent Office announced Friday that it had rejected two patent applications that claimed the inventions at issue were created by artificial intelligence, ruling that under Europe’s patent laws, an inventor must be a human being.

The applications, which attracted worldwide attention when they were filed over the summer, marked the first-ever attempts to secure patent protection for inventions said to be entirely the work of artificial intelligence with no human involvement.

The EPO issued a brief statement announcing that it had refused the applications, which cover a beverage container and a flashing device to be used in search-and-rescue missions...


We loved this comment from "Do not pull my leg" -- an anonymous commenter who wrote that "artificial intelligence does appear no more than a hype, which will most probably end up like a deflated balloon. There is nothing intelligent in those machines whatever the applicant of both applications may say."

Here's the full comment:

Independently of the discussion relating to inventorship, it does not seem that the machine was so "intelligent" as the search in both cases has revealed very relevant documents.

In the case of the can, the mere connection of cans through their external profile is known. The only difference is that in the case of the application, the surface is a fractal surface. Whether this is inventive remains to be seen. As the application has been refused by the Receiving Section, we might never know.

As far as the light beacon is concerned, the whole invention seems entirely based on studies of the applicant himself. I would say if only the theory on which the applicant bases its application is proven that one could start believing what is going on. It would interesting if the applicant provides more than a “paper” invention and would show a real device working according to the claimed invention. To me this invention is nearing a substantial lack of sufficiency. As the application has been refused by the Receiving Section, we might never know.

What is striking as well, is that in both cases the notion of fractals come up. I do not think this is innocent.

When reading the explanations given about the way the invention was allegedly created, it is difficult to follow that “the machine was not trained on any special data relevant to present invention”, but a few lines higher is said that the machine. Either one or the other, but not both at the same time. The whole. A quick look at the references allegedly explaining the working of DABUS, at least US 5659666 has never crossed the Atlantic and US 7454388 has not led to a European Patent due to problems with Art 123(2). For the EP application corresponding to US 2015/0379394 summons to OP have been issued. Art 84 (if not Art 83) seems to be a major problem, so that we might also end up with problems under Art 123(2).

On the other hand, artificial intelligence does appear no more than a hype, which will most probably end up like a deflated balloon. There is nothing intelligent in those machines whatever the applicant of both applications may say.

They are only doing what they are told and if some self-perturbation of connection weights between neurons, like alleged in DABUS should all bring the desired result, this needs a bit more explanation.


This was posted in reply to a post from Rose Hughes of AstraZeneca, who filed this under "AI hype". So even patent maximalists realise it's nothing but marketing nonsense?

To Hughes' credit, she noted how (and where) they left a loophole:

It seems that the EPO can therefore neatly dismiss any need for detailed discussions on the morality of AI inventorship, so long as the AI inventor is not also claimed to be the owner of its creations. It has always been this Kat's view that the whole exercise of the AI inventor applications is slightly irrelevant given that what primarily matters from a legal standpoint is who owns an invention, and who should therefore be awarded the patent.

[...]

If Dr Thaler's appeal of the Receiving Office decision does indeed go ahead, IPKat will await the Statement of Grounds with interest (deadline for filing the appeal will be early 2020). Based on their submissions to the Receiving Office, it seems that the AI inventor team are lacking the legal arguments to overturn the decision. Moral and social arguments are unlikely to convince the Boards of Appeal. A request for a referral to the Enlarged Board can probably also be expected, but is similarly unlikely to be granted. None-the-less, the team have undoubtedly been successful in one goal, bringing attention to Dr Thaler and the team. Notably, we are only able to see the file history because early publication of the applications was requested. However, in this Kat's humble view, the whole argument surrounding AI inventorship is premature until the existence of an AI truly capable of a inventive act has been proved.


Appeal or no appeal, the person received plenty of publicity and could reapply with a real person's name. Maybe the whole thing was a premeditated publicity stunt all along.

What's at stake here isn't software patents, not directly anyway. When they use "HEY HI" to justify software patents it is a real issue however; sometimes not even that is necessary as massive corruption at EPO and an attack on the judges have both facilitated the granting of illegal patents such as patents on algorithms and only lawyers are happy, the litigation 'industry'. James Prankerd Smith (GJE) has just mentioned a European Patent pertaining to "algorithm [...] implemented on a computer" -- one that we named in passing before. The judges in this case aren't autonomous, so a real legal test would have to be outside the EPO:

This decision is certainly worth reading if you deal with inventive step objections of the form “abstract algorithm implemented on a generic computer” or the like. The Board of Appeal provides a helpful review of case law, and pushes back the frequent assumption that improved algorithms cannot give a technical effect. This decision could well be worth referencing when formulating a response to this type of objection.

The application relates to SQL database management, and claims a method of updating values in a data structure in a relational database system. This is a fairly classic case of an algorithm which could conceivably be abstract, but which is implemented on a computer in any modern industrial application.

The examining division originally refused the application under Article 52 EPC on the ground that it is directed to a purely abstract method. The Board of Appeal dismissed this ground, confirming the well-established low bar for patent-eligible subject-matter, with even “database system” being enough to give a technical element to the claim.

However, the examining division also sensibly set out an assessment of inventive step for an assumed computer-implemented version of the claimed method, in the expectation that the first hurdle of Article 52 EPC could potentially be overcome.

[...]

Although this was not a point discussed in the decision, it seems likely that it may be difficult to prove during prosecution that a particular feature has been motivated by technical considerations.

However, this can be significantly helped by identifying technical intentions and motivations at the drafting stage. In particular, by associating specific features with specific expected technical advantages in the specification as originally filed, the burden can be transferred onto the examiner to show that the feature lacks technical character.


For those who are in central Europe, this coming weekend there's a talk of interest. Benjamin Henrion has just mentioned "Discussion on Unitary Software Patents at 36C3 this Saturday" and the abstract says:

The Unitary Patent is the third attempt to impose software patents in Europe. Software patents are a threat to small- and medium-sized software companies that cannot defend themselves. The UPC (Unified Patent Court) is an international court made outside of the European Union (EU), which would have the last word over the question of software patenting. The Court would favour “patent trolls” which steal our jobs and extort money.


He recently organised a protest against this. We've seen no press reports however; does press coverage regarding patents still exist? Hardly. Many of the so-called 'articles' are composed by law firms directly or indirectly (the likes of Joff, their megaphone whom they pay to lobby). ⬆

Recent Techrights' Posts

EPO Will Stop Working for 10 Days to Protest Against 'Cocaine King' and His Assault on Democracy, Lawfulness, Transfer of Power at EPO
Strikes, work stoppage, all rolled onto one
Techrights is International
There are many sites that focus on local communities or nations. We're not one of those sites.
Brigading Against Women - Part X - When Actions of American Men Are Not Judged by Other American Men
"There is not the slightest suggestion that either Dr or Mrs Schestowitz did anything to invite or deserve it. They are both clearly and justifiably angered, dismayed, distressed and hurt by it."
European Patent Office (EPO) Series: A Source of Pride for Portugal?
In this part our focus returns to the main theme of this series, namely the current reappointment campaign of the EPO President, as we consider whether Campinos can still expect to enjoy the same level of support from the Portuguese political establishment as he did during the earlier stages of his career
Computers Freeze Because of UEFI Restricted Boot
damage is also done to computers running Windows
Linux Has Conquered Mobile, But Desktops and Laptops Matter More
When people say the desktop "doesn't matter" they seem to be missing the point that workplaces use desktops (or laptops) and a lot of the work gets done not on skinnerboxes but "workstations" or terminals
 
Black Brit on "Pictures Comparing Me to a Monkey" Because of Brett Wilson LLP Client
"Like Firm, Like Clients..."
President of the EPO Should be Kicked Out, Not Have His Term Terminated in 2028
The President is facing more scandals soon
David Gordon at The Register MS Keeps Feeding the Pyramid Scheme With Fake Articles That Say "AI" Dozens of Times
How can such a publisher still be taken seriously?
The Local Staff Committee The Hague (LSCTH) at the EPO Explains the Working Conditions and Crisis of Plunder (Less for Workers, a Lot More for Dictators Who Refuse to Leave Leadership Roles)
Next week will be epic
IBM Brings Avalanche to Red Hat October 1st 2026 (Thursday)
IBM is turning up the heat on staff
Links 29/09/2026: Mass Layoffs at Microsoft and Backlash Over Data Center Policy of Microsoft
Links for the day
5 Years Ago (September 29, 2021) Richard Stallman's Talk in Ukraine Noted
Let's hope the war will end soon
Links 29/09/2026: Acceleration, Morale, and ROOPHLOCH 2026
Links for the day
Links 29/09/2026: "Scam Altman Is Driving Drunk" and Anthropic Lies About Slop Usage
Links for the day
It is Very Expensive to Slow Down Techrights
Garrett's expensive hearing (costing the British taxpayers about 120,000 pounds; he doesn't live here and does not pay tax here) slowed us down for a few days, but we've picked up the pace since
Brigading Against Women - Part IX - "What Are You, a Racist?"
Because behind every strong man is a strong opinion?
Gemini Links 29/09/2026: "Digital Sabbath", Starting a GemCapsule, and Sterrenkijker 1.1.0
Links for the day
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Monday, September 28, 2026
IRC logs for Monday, September 28, 2026
Brigading Against Women - Part VIII - Misogyny Embedded; Like Firm, Like Clients
It's about back doors
Chaos Imminent at Red Hat (This Week)
IBM is 'finishing the job' an ex-IBMer (Ron Hovsepian) did at Novell.
Microsoft Can PIP Workers (Silent Layoffs) Until Almost Nobody is Left
Microsoft is gradually vanishing
The Cyber Show Says Truth Always Requires a Fight, a Struggle
"Truth-tellers always face struggle and run risk"
Maladministration at the EPO as a Crisis for the EU and for Portugal's Image in Europe
Some time soon we'll publish a long article about what EPO leadership means to Portugal
3 Years of UK Hosting
We commend the webhost for standing firm in the face of misogyny
Tech Labeled "Smart" Does Not Make People Smart
People who insist on making everything digital are not advancing progress
Gemini Links 28/09/2026: Truncated Sleep, Plain Text, and Slop Problem Kept Out of Geminispace
Links for the day
Links 28/09/2026: "A Growing North Korea Problem" and Independent Journalism as a Lifeline
Links for the day
Links 28/09/2026: Microsoft Chatbot "Giving Extremely Specific Advice to a School Shooter on How to Maximize Casualties", ‘Suicidal Empathy’
Links for the day
Microsoft's Attacks on Courts in the Netherlands Result in GNU/Linux Growing to About 10% There
One core issue that justified this and led to this outcome is Microsoft's interference with the administration of justice
They Create the Conditions for People to Leave, This Way They Don't Call it "Layoffs"
We keep seeing many stories like these
Gemini Links 28/09/2026: Wildfire, DOS, and Backups
Links for the day
Brigading Against Women - Part VII - 'Trolling' Courts and Legal Systems in America and in the UK (Europe) Costs a Lot to Taxpayers
They only attend hearings after being arrested
European Patent Office (EPO) Series: The Portuguese Talent For Bureaucratic Empire Building
Portugal’s success in securing senior executive appointments at the EUIPO and the EPO is a notable example of how countries seek to strengthen their influence within European intergovernmental institutions
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Sunday, September 27, 2026
IRC logs for Sunday, September 27, 2026
Gemini Links 27/09/2026: Writing Well, Productivity, and a Relaunch in Geminispace
Links for the day
Making This Site More Useful to More People
Search engines (as a concept) are under attack
Exposing Crimes of Americans (From the UK)
We must ensure UK prisons are never misused to punish/silence people who expose crimes in America
Spam and Chatbot Spam in Internet Relay Chat (IRC)
Maintaining one's own IRC network requires some housekeeping, but it's simpler than outsourcing to malicious companies
Search Engine of Techrights Improved for Better Signal-to-Noise Ratio
Our growing community needs more search facilities
Microsoft: We Love Layoffs, We Do Silent Layoffs, More Microsoft Projects/Teams/Studios Confirmed to be Shutting Down
XBox is dying. Piece by piece.
Brigading Against Women - Part VI - On Garrett and Lozza, Defamation, Attempts to Crack My Wife's Accounts, Social Engineering to Try to Take Sites Offline, Subscribing Us to Mountains of SPAM
tried swatting us
Links 27/09/2026: "Provost of Dartmouth Busted Using Hey Hi (AI) Slop for His Own Writing in Newspapers and Academic Journals" and "UK Government Enforcement Reform"
Links for the day
People and Sites Wish a Happy 43th Birthday to GNU (Today)
We've collected some examples
Dejan Panovski Outs linuxize.com as a Slopfarm, Another Site That Sold Out and Became LLM Garbage
From what we can gather, both images and text are slop
A Microsoft Lunduke OS (LCOS) is Not Even in Top 100 in DistroWatch, Microsoft Lunduke Just Games the Numbers Like Linspire Did (and Got 'Banned' for It)
Linspire used to send people to 'its' DistroWatch page to make the illusion of popularity
Links 27/09/2026: Microsoft Fired People a Day After Promotion, "Fragility of Online Journalism"
Links for the day
Brigading Against Women - Part V - SWATTING, Extortion Against Webhosts, and Lawfare Under Sworn Oath (Perjury Also)
Matthew Garrett has no qualm about still collaborating with Lozza
20 Years Later
There's a strong anti-democracy movement brewing in many places
Gemini Links 27/09/2026: Telescopes/Gskyer, Writing for Writing's Sake, and Writing Tools
Links for the day
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Saturday, September 26, 2026
IRC logs for Saturday, September 26, 2026