Could AI be An Inventor?March 14, 2022

Stephen Thaler is an AI researcher who has developed a device for the autonomous bootstrapping of unified sentience, or DABUS, an AI machine. In recent years he, or rather DABUS, has been producing both copyrightable and patentable work. Yet, countries around the world aren’t quite convinced. Many countries, like the US, clearly distinguish who may be an author of a copyrightable work or an inventor of a patentable subject. In the US, both authors and inventors must be human. This month, the US Copyright Office’s appeals board followed decades of case law to deny copyright protection for an image produced by DABUS stating that “copyright law only protects ‘the fruits of intellectual labor’ that ‘are founded in the creative powers of the [human] mind.” But other countries don’t necessarily have in the same clarity.

Earlier this year, DABUS was granted the world’s first patent created by artificial intelligence in South Africa. The patent even reads that “The invention was autonomously generated by an artificial intelligence,” and identifies Thaler’s DABUS as the patent’s generator. The issued patent is for a type of beverage container that has a wall with a fractal profile which forms “pits and bulges” in the surface which can “enable multiple containers to be coupled together”. The beverage container also includes “devices for attracting enhanced attention” like a pulsating light, among others.

A few days after the issued South African patent, DABUS seemed close to gaining another patent in Australia. In a ruling from the Federal Court of Australia, the Court reversed the patent office’s decision to reject the patent application. Judge Beach issued an opinion stating that “In my view an artificial intelligence system can be an inventor.” Judge Beach continued his argument with an analysis of current Australian patent law, which does not mention AI, but only an “inventor” as who is able to invent patentable work. The patent office relied on the dictionary definition of “inventor” in its rejection of the DABUS patent application. Judge Beach argued that “reliance on dictionary definitions is problematic to say the least,” and instead stated that a “fair reading” of the current laws reflect that the name of the inventor can be a non-human. Yet, the judge concluded that “a non-human inventor can neither be an applicant for a patent nor a grantee of a patent.”

Ashley Holland is an intellectual property attorney in the MVS Biotechnology and Chemical Practice Group. To learn more, visit our MVS website, or contact Ashley directly via email.

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