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

Digitalisation Is Not Inevitable or Unavoidable
Nor inescapable
Intercontinental Brigading - Part XXXXIV - Why the Swatting Failed
After that we only ever heard from or spoke to cops when we invited them to our home to collect evidence
 
IBM 'Robbery': No More Car Allowance in the UK, Severance Shredded, CEO Pay Up 51% in One Year While Thousands Laid Off in Secret
Why does a CEO reward himself so much when the company does so badly?
Gemini Links 08/11/2026: "Back", Zot, and Information Overload
Links for the day
“Concerned Microsoft Workers” Say “Working at Microsoft Has Become Joyless and Demoralizing.” (That's What Microsoft Wants, More Will Leave That Way)
Many Microsoft employees are going to leave
The Register MS is Losing Hundreds of Thousands of Pounds a Year While Directors Pay Themselves Hundreds of Thousands of Pounds a Year in Dividends
they take money from slop pushers and have clearly compromised some journalistic standards in the process
GNU/Linux Measured at 7.4% in the UK This Weekend: Clownflare Radar
I hope that one day GNU/Linux will be everywhere here
Never a One-Person Project
Just because I'm the main "public face" of the site (who takes all the insults and SLAPPs) doesn't mean I deserve all the credit
“I Always Expect to Lose. I Fight Anyway, and Sometimes I Win.” — Richard Stallman
To change the world meaningfully people must think big
Stop Looking for News About "Layoffs", Layoffs Are Over (They've Been Rebranded)
To properly assess the status quo we need other yardsticks
Links 08/11/2026: Bosses Who Were Forcing Their Workers to Use Slop Change Mind, "Rapper RBX Files Ninth Circuit Appeal in Fraud-Focused Class Action Lawsuit Against Spotify"
Links for the day
Links 08/11/2026: Why Vikings Stayed in Iceland and "TikTok Accused Of Promoting Sex Industry To Young Girls"
Links for the day
Gemini Links 08/11/2026: "Before Sunrise" and LLM Scrapers Versus Self-Hosting (or Web in General)
Links for the day
Intercontinental Brigading - Part XXXXIII - Weaponising Cops in Another Continent (Europe), Knowing They Cannot Come to Your Home in America, While Threatening Women
This year it culminated in death threats
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Saturday, November 07, 2026
IRC logs for Saturday, November 07, 2026
The Decade Ahead, a Decade of Suppressed Stories
Our stories aren't discouraged or considered taboo because of racism or "toxic politics" or anything like that; they just hurt powerful people and corporations
Solicitors Regulation Authority (SRA) Inaction and Incompetence - Part V - "Reports Closed Without the Evidence Being Examined."
Totally what the SRA did regarding Brett Wilson LLP
Gemini Links 07/11/2026: Illusion Garden and Lagrange 2
Links for the day
Complexity is the Tyrant's Friend
Slop is for feeble minds and cheaters
IBM Firings (or Silent Layoffs) After Bluewashing; "IBM’s Employment History is More Troubling Than its Patriotic Marketing Suggests"
"It has zip to do with race but everything to do with the greed of the 1% who have been doing all they can to destroy the middle class..."
“Week van de Werkstress” and Work-Related Stress at the EPO, Where Staff is Bullied Into Granting Illegal Patents for Foreign Monopolists
"poor working environments, including discrimination and inequality, excessive workloads, low job control and job insecurity pose a risk to mental health"
Czech Republic: GNU/Linux Rises Above 5% in Desktops and Laptops
A year ago it was somewhere around 4%
EPO's Local Staff Committee The Hague Says Almost or About a Third of Staff Assembled to Organise at "a Time of Continued Social Unrest"
They speak of "circa 850 staff members in attendance" (in The Netherlands there are about a couple thousand)
Suggestions That XBox Will be Offloaded by Microsoft, Rather Than Shut Down, Make the False Assumption XBox is Profitable (It's Not, It's a Liability)
Microsoft has serious financial troubles
Which "Smart" "Phone", Which "Social" "Media", and Which "Cloud" "Storage"?
Let's take back control of the language
State of the (Linux) Slop, Late 2026 Edition
Google News (Gulag Noise) is a plagiarism booster
Year 21
It's 5PM here
Links 07/11/2026: "Flock Cameras Got Eviscerated by the Midterms" and Joshua Wong Shows China is Highly Repressive and Fully Controls Hong Kong
Links for the day
At The Register MS the Net Liabilities Doubled in One Year, Tangible Assets Down About 35% in One Year
signed off in 2026
Intercontinental Brigading - Part XXXXII - Running One's Mouth
British Police told me "making a false complaint to police is a crime" in relation to Lozza
Another 20 Years of Exposing Corruption
We'll focus on carrying on what we do
EPO Budget and Finance Committee (in Very Recent Meeting) Increases Bribes to People Who Vote on Campinos Reappointment ("Cooperation Activities")
Buying 'elections' to protect the cocaine-stained regime in Europe's second-largest institution
Links 07/11/2026: London's SLAPP Industry Now Targets Kirkenes (Northern Norway) at the Behest of Corrupt Thieves in Russia and Microsoft’s 'Buyout' Offer Crashes Microsoft Systems
Links for the day
Links 07/11/2026: "The Moon is Waning Crescent", Homeworlds, and "Can't Handle The AVIF!"
Links for the day
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Friday, November 06, 2026
IRC logs for Friday, November 06, 2026
IBM Compels Workers - Even at Red Hat - to Become "Retired-ish"
Who needs RAs (layoffs, which have been rebranded as "buyouts" like pink slips are generous "gifts") when workers can have their butts kicked every day and WARN Act reporting thresholds are never approached?
Links 06/11/2026: "XBox Is Closer Than Ever to Being Sold Off" and "BuzzFeed Stock in Free Fall"
Links for the day
Gemini Links 06/11/2026: Dao and Dreams
Links for the day
20 Years of Techrights
Celebrating 2 decades of abuses of power being watched (and looking back at key changes)
Linux (and Linus Torvalds) Sleepwalking Into a Binance-Level Catastrophe With Slop 'Code'
Someone should ask Linus Torvalds or his boss (Linux Foundation) if they deem slop, which nobody audits, trustworthy enough to add to every computer out there running the Linux kernel
Vitaly Orlov Weaponises Deep Pockets to Leverage High Court of Justice in London for Censorship and Punishment of Critics
reproduced in full for more exposure and to make censorship harder
Intercontinental Brigading - Part XXXXI - What I Told British Police About Lozza the Same Month Garrett Was Preparing His First Nastygram From 'Hired Guns' Brett Wilson LLP
Lozza and Garrett
Outsourcing at IBM
Cheapening of the workforce is hardly a new problem
The Register MS: Turnover Fell by Over a Million Pounds (About 20%) in One Year, Administrative Expenses Rose by Almost Half a Million Pounds, The Register MS Operates at a Loss
This is not a (commercially) healthy publisher
Links 06/11/2026: Slop "Companies Race to Lock Down Oil Clients" and Salon Shuts Down
Links for the day
Our Third Decade
Our anniversary is tonight at midnight
Freedom Is Not Free of Charge, Freedom Can be Very Expensive
Being someone's "slave" is the "default" when no resistance exists
Intercontinental Brigading - Part XXXX - Swatting by Proxy
Using imbeciles who lie to cops and then dox cops (and already have arrest record and court documents wherein they admit being stoned in front of the cops)
Intel Craters at Taxpayers' Expense (Bailouts for Failing Companies Simple Don't Work)
GOP, which did this, has lost many seats
Mass Layoffs at IBM, Also Outsourcing to India
What IBM does to itself it is doing to other entities as well
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Thursday, November 05, 2026
IRC logs for Thursday, November 05, 2026
During Strikes and Industrial Actions Lots of EPO Staff Organised Yesterday and Will Do the Same Next Week
There really needs to be a genuine election, not a reappointment
Gemini Links 06/11/2026: Hadestown and "Where Has the Electronics Shop Gone?"
Links for the day