South Africa has accepted a patent application naming an AI as an inventor, and has marked a new milestone in the evolution of patent law. The patent is for “a food container based on fractal geometry that improves grip and heat transfer,” and was accepted by South Africa’s Companies and Intellectual Property Commission on June 24. The patent recognises DABUS as the inventor, and the machine’s owner as the patent owner. DABUS stands for Device for the Autonomous Bootstrapping of Unified Sentience and is an artificial intelligence tool developed by Dr. Stephen Thaler, CEO of Imagination Engines, in the United States (US). This acceptance comes after a series of rejections by the US, UK and EU patent offices, as their laws did not provide for the recognition of a non-natural inventor of a patent subject.
Soon after the acceptance from South Africa, a Federal Court in Australia on 30th July, 2021 held that an artificial intelligence system is capable of being an “inventor” under the Australian patent law. All the leading discussions in the area of AI as inventor and thereby, granting legal personhood to AI have been centred around a definition of “inventor” that requires the “person” to have legal capacity. This restricts the scope of the term “inventor” to natural persons. However, it has been argued that the status quo is not fit for the Fourth Industrial Revolution where AI is set to be the driving force behind technological advancement. In this context, Justice Beach of the Australian court stated that recognising AI as the inventor was consistent with the present times and helps incentivise innovation and keep the momentum going. He stated “I need to grapple with the underlying idea, recognising the evolving nature of patentable inventions and their creators. We are both created and create. Why cannot our own creations also create?”
The recognition of AI as an inventor by South Africa and Australia shall have broad implications for patent laws not just in their domestic countries but also on a global scale. Discussing the South African judgements, a prominent patent attorney in South Africa explained that the patent legislation in South Africa does not define the term “inventor” and therefore, no substantive patent examination happens in that regard. As long as all the paperwork is duly filled in and submitted to the authorities, the patent office “pretty much rubber stamps for approval.”
The Australian decision however, is more complex. The patent office in Australia had previously rejected the application made with DABUS named as the inventor. Dr.Thaler and his team of attorneys preferred an appeal with the concerned federal court. The presiding judge overruled the patent office’s decision; he stated that one should not adopt a narrow view of the term inventor and accepted the AI tool DABUS as the inventor. This decision is believed to be of far reaching impact on our understanding of patent law and IP rights in the status quo.
Some commentators have expressed concerns that providing patent protection for AI-generated inventions could raise the bar of inventiveness or fundamentally change the concept of the ‘person skilled in the art’, and therefore make it harder for human inventors to secure patent rights. Justice Beach swept aside these concerns, observing that the Act focuses on inventive step, which uses a hypothetical and objective construct which is not at all concerned with the inventor’s mental processes as such. It was also observed that whether the inventive step is produced by a human or a machine is simply irrelevant to the inquiry mandated by the Act, because one takes the inventive step, howsoever it arose, and compares it with the prior art base and common general knowledge – it is not about the inventor or his or its characteristics or status whatsoever.Some commentators have also suggested that, by accepting inventorship as extending to AI systems, it would elevate the status of AI to that of a legal person, allowing it to hold and exercise proprietary rights. However, those who support patent rights for AI-generated inventions argue it will incentivise the making and disclosure of innovations using AI. Another issue is that wrongly naming a human inventor, when the alleged invention has in fact been made by AI and not by the named human, has the potential to result in an invalid patent.
The decision will have significant ramifications for many industries, such as the pharmaceutical industry where machine learning is becoming an important tool utilised to achieve effective, cheaper and quicker drug discovery. It is also to be noted that an appeal before the EPO is set to be heard in December 2021. The progress of this case is of significant interest to students, scholars, and professionals across various fields.