4. Persons entitled to file application

A European patent application may be filed by any natural or legal person, or any body equivalent to a legal person by virtue of the law governing it (Art. 58 EPC). An application may also be filed either by joint applicants or by two or more applicants designating different contracting states (Art. 59 EPC).

In J 8/20 and J 9/20 the Legal Board confirmed the decisions of the Receiving Section of the European Patent Office to refuse two applications in which an artificial intelligence system was designated as inventor in the application forms. The Legal Board also refused the auxiliary request according to which no person had been identified as inventor but merely a natural person was indicated to have "the right to the European Patent by virtue of being the owner and creator of" the artificial intelligence system. The Legal Board held that under the EPC the inventor had to be a person with legal capacity.

In proceedings before the EPO, the applicant is deemed to be entitled to exercise the right to a European patent (Art. 60(3) EPC). This fiction only relieves the EPO of any need to investigate the existence of the entitlement. However, when a person referred to in Art. 60(1) EPC, other than the applicant, disputes the entitlement to the grant of a European patent, the entitlement may be modified under the conditions provided for in Art. 61 EPC.

The Enlarged Board held in G 3/92 (OJ 1994, 607) that when it has been adjudged by a final decision of a national court that a person other than the applicant is entitled to the grant of a European patent, and that person, in compliance with the specific requirements of Art. 61(1) EPC, files a new European patent application in respect of the same invention under Art. 61(1)(b) EPC, it is not a pre-condition for the application to be accepted that the earlier original usurping application is still pending before the EPO at the time the new application is filed.