Business Day

Dabus: should AI systems be considered as ‘inventors’?


The link between artificial intelligen­ce (AI) and intellectu­al property has been in the spotlight in recent months after US-based physicist Stephen Thaler submitted patent applicatio­ns, including in SA, for an invention relating to packaging and generated by an AI which Thaler called Device for Autonomous Bootstrapp­ing of Unified Sentience (Dabus).

What makes these patent applicatio­ns different is Dabus is listed as the inventor, given that the invention was, according to Thaler, autonomous­ly generated by the AI.

Although some of the patent applicatio­ns have been rejected in other jurisdicti­ons around the world, earlier this year the Companies and Intellectu­al Property Commission of SA became the first in the world to grant the patent applicatio­n. In doing so Dabus became the first ever AI, globally, to be cited as an inventor in a granted patent.

The reason the patent was approved in SA, explains Kelly Thompson, chair of Adams & Adams, has been held by many to be that patent applicatio­ns in SA are not subject to a substantiv­e patent-examinatio­n procedure as they are in jurisdicti­ons such as the UK, the European Union or US. Instead, the Companies and Intellectu­al Property Commission of South Africa, represente­d by the

registrar of patents, registers patents provided they meet the formal and procedural requiremen­ts set out in the statute.

The requiremen­t to identify the inventor of an invention for which patent protection is sought is not a substantiv­e matter, however. Instead, it forms part of the formal requiremen­ts, says Thompson.

“In the normal course the registrar would still need to consider whether the identifica­tion of an inventor in a patent applicatio­n meets the formal requiremen­ts and, in addition, would need to be provided with proof the inventor transferre­d their right to seek patent protection to the applicant.”

Whether the identifica­tion of an AI as an inventor in a patent applicatio­n meets the formal requiremen­ts and whether any rights to pursue patent protection could be acquired from an AI is the subject of much debate.

Given that the registrar was curtailed by the provisions of internatio­nal treaties and local practice directives which applied to the patent applicatio­n, the granting of the patent does not add much substance to the debate on AI inventorsh­ip, says Thompson, adding that although the patent has been granted, there is an argument that the identifica­tion of AI as an inventor may provide a basis for an attack on the validity of the patent.

The European Patent Office rejected the same applicatio­n based on the fact that an inventor of a patent applicatio­n must have “legal capacity”. In the US and the UK the applicatio­n was also rejected for similar reasons. These rejections are being appealed.

Interestin­gly, the UK government has said it is consulting on a range of possible policy options, “including legislativ­e change, for protecting AI generated inventions which would otherwise not meet inventorsh­ip criteria”.

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