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News article1 October 2021

Robot inventors and coffee capsules

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Can Robots be recognised as inventors?

Stephen Thaler and his team have been trying to find out the answer to this question. He filed patent applications with Patent offices around the world for an invention he claimed had been created by his artificial intelligence (AI) system, named DABUS.

The Court of Appeal of the United Kingdom and Wales gave its verdict earlier this week on this topic, stating that an AI could not be recognised as inventor, since under UK patent law only “natural persons” (read: human beings) can be recognised as the inventors of a machine.

This is the latest of many decisions on this topic in the past few years, which almost unanimously held that a machine could not be recognised as the creator of a patented invention. The US Patent Office rejected a similar application for the same reasons, as did the European Patent Office (the latter decision is currently under appeal). The only exception so far is Australia, where a Federal Court judge held that an artificial intelligence could potentially be recognised as the inventor, arguing that the Australian patent law does not expressly define an inventor as a human (unlike those of other countries such as the UK) and that this requirement would not reflect the reality of modern research in which it cannot be said that every patentable invention is purely a human creation. This decision too is currently under appeal.

It remains to be seen how the topic will evolve around the world, but since most jurisdictions agree on only recognising humans as inventors, the days of the artificial Thomas Edison are yet to come.

 

The Nespresso capsule trade mark: latest chapter

Most people are very familiar with Nestle’s Nespresso capsules, and indeed Nestle aimed to secure trade mark protection for the shape of these capsules in the early 2000s, claiming its distinctive character.

Said trade mark application was rejected by the EUIPO all the way back in 2002 as the argument relying on the distinctive character of the capsule was not found conclusive. Nevertheless it was accepted by other trade mark offices, such as was the case in Germany and Switzerland.

More recently, the Swiss company “Ethical Coffee Company” has challenged the validity of this trade mark, claiming that the shape of the capsule should not be subject to trade mark protection, since the shape itself has a technical effect. We should remind our readers at this point that one of the absolute grounds of refusal of a trade mark application is that the shape of the trade mark responds to a technical necessity, since this would de facto give the trade mark owner a monopoly over a technical elements for as long as the trade mark is registered (i.e. potentially indefinitely). Technical elements which give value to an object should be protected by patents or utility models, both of which have a time limitation unlike trade marks. This applies even if the shape in itself has acquired distinctive character and has been established as a trade mark on the market.

Ethical Coffee Company had already succeeded in having the Nespresso capsule trade mark struck down in Germany in 2017. The Swiss Supreme Court this month gave a similar decision, meaning that the capsule trade mark is not longer protected in Switzerland either.

 

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Publication date
1 October 2021