Patent Applications in the Light of Section 11(b) of the Law
- Given the appellant's position that he was not the inventor and in view of the instructions Patent Law, the patent applications were required in the manner in which the patent applicant became the owner of the inventions.
In the applications it was stated that the appellant is the owner of the invention by virtue of assignment.
- Transfer is indeed one of the possibilities mentioned in the definition of an inventor. The problem is, even according to the appellant's own approach, there is a difficulty in the said declaration as to the manner in which the owner of the invention belonged. The appellant is of the opinion that the inventor is the machine DABUS, however, he does not claim that the machine can perform a "transfer" operation.
- The appellant argues that the examiner and the registrar should not have pondered the declaration as to the mode of transfer, in view of the Article 76 The Patent Law establishes a presumption that the applicant is the owner of the invention as long as the contrary has not been proven, and in particular when it comes to patent applications filed by virtue of the law of precedence, as in our case.
- I have not found it possible to accept this argument. Section 17(a) The Patents Law states that the examiner must examine whether a patent application meets various requirements, including compliance with the provisions of Chapter A of Chapter C. By Section 17(a1) The examiner can only accept the request if he is "convinced" that the requirements have been met. Article 20 The law refers to a case in which a registrar examines or "sees" a difficulty in an application in terms of patentability or compliance with the provisions of section A of that chapter.
The manner in which the patent applications were drafted immediately 'flooded' raised a question mark on these issues, a difficulty that the examiner and the registrar could not "see" and in any case they should have addressed. The appellant argues that the Registrar should not have addressed the question of the transfer, as it does not examine a system of communication between an employee and an employer in the case of the invention of a service; However, the parable does not fit the parable, since a case of the invention of a service and an engagement between an employee and an employer does not raise a difficulty in itself. The appellant extols the principle of the purity of the register and attributes to it the reason why the patent applications included the name of an inventor. The registrar, who is entrusted with the integrity of the register, is not supposed to ignore a possible difficulty that is apparent to him at the very beginning of the process.
- The machine, DABUS, can't perform a "Move" action. The possibility that the appellant thus became the owner of an invention was removed from the chapter (p. 47, paras. 18-25).
For a similar reason, no argument was raised at all that the appellant was entitled to find it "according to an agreement" (p. 47, para. 18).
- The only option in the definition of 'owner of an invention' that can be relevant, according to the appellant himself, is entitlement by virtue of the law.
In its current incarnation before the Registrar, the appellant's argument is that the machine is the "inventor" and that his entitlement is by virtue of the law. The appellant sought to base his entitlement by virtue of the law on a doctrine of common law known as the "Doctrine of Accession".
- The Registrar ruled that "inventing" according to Patent Law He is a human being, because a machine cannot be considered an "inventor" and therefore it is not possible to acquire an entitlement to an invention by virtue of a machine, not even by virtue of doctrine. In view of this conclusion, the Registrar left the question of whether the said doctrine may apply in our case.
The appellant disagrees with this. According to him, there is no impediment and it is even appropriate to interpret the term "inventor" in Israeli law as one that also includes a machine. We will turn to this now.