Introduction:
Only a human or other legal person can be an owner, controller or patentee. That of course includes an inventor who is a human. But it is a fallacy to argue from this that an inventor can only be a human.
– Justice Beach
At present according to the age old patent laws, a patents require human inventors. So in the present times no laws allows an artificial intelligence to become an inventor. Such patent laws however primitive and we can expect debates, possible laws on the topic whether an Artificial Intelligence system should be regarded as an inventor. Under the US regime, an inventor should be an individual or individuals who bring about the subject matter of the invention. In the Chapter 10 of US patent act, an inventor is described in the following manner:
“The term "inventor" means the individual or, if a joint invention, the individuals collectively who invented or discovered the subject matter of the invention.”
Also under $101 of the code it is mentioned that:
Whoever invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent therefor, subject to the conditions and requirements of this title.
From all of the above definitions we get a clear idea that according to the US Code the term inventor is used in reference to an individual or person. So, it clearly negates the idea of having AI as an inventor.
Background:
On April, 2020 a decision came up from the United States Patent Office (USPTO) with reference to application number Appl. No. 16/524,350 where there was no human inventor or co inventor rather the application listen an AI system as its inventor named "DABUS (the "Device for the Autonomous Bootingstraiming of Unified Sentience"). Despite having all the patentability requirements such as utility, novelty, industrial application the application was not granted protection as there was no human inventor which is clearly mentioned under the US patent law that only natural persons can become an inventor and hence the application was denied. Even other patent offices have come to the same conclusion with respect to DABUS on the matter of AI as inventors. The patent application was filed in the year 2019 in the month of September under the Patent Cooperation Treaty. In this year on July, The Companies and Intellectual Property Commission of South Africa granted world’s first patent and has approved Artificial Intelligence system as its inventor by South Africa to the above same AI inventor. The invention in question involves interlocking food containers, which are specifically a beverage containing containers, which are very convenient for robots to grasp. Many opine that the patent is mundane because its inventor is an AI system known as DABUS. Indeed this invention is a milestone in the existing patent laws.
DABUS is an AI which is described as a connectionist AI system created by Stephen Thaler who is a pioneer in this field of AI. It functions on the basis of machine learning which has popularly gained more importance during these Covid times. The system replicates brainstorming and forms inventions which are new. DABUS is a kind of AI, frequently called as creativity machines. Creative machines process and analyse information which is commonly known as machine learning. Once the machine learning phase is achieved it can then autonomously function without human intervention. It is named so because it is able to independently function but it is very different from regular ones like SIRI which is the voice of Apple’s I phone. DABUS could not file the patent application on its own and so it took the aid of University of Surrey and a team of lawyers. The application which listed DABUS as the inventor was applied at more than 10 jurisdictions like USA, Europe, South Africa, Australia. Only South Africa approved the patent application. It is pertinent to note that the South African patents laws are not that rigid as compared to the US Code and it is not subject to a lengthy patent examination procedure like that of other countries like Canada, Europe, US and many other jurisdictions.
However, South Africa’s decision has faced backlashes and a lot of criticisms. Many intellectual property experts have even labelled it as a mistake or oversight by the commission. As we have discussed above that the US and many other countries have a very rigid formal procedure for examination of a patent application unlike South Africa, the US denied the application by stating various points as follows-
To begin with the US patent laws associate inventors with natural persons as there is mention of the words “him or her” in their code.
Additionally, the for the purposes of patents, one ingredient is required that is mental conception, that is only a human mind is capable to invent. Ai systems lacks to fulfil the threshold of mental conception.
To conclude, AI is not capable of possessing rights of an inventor.
Thought the patent office of South Africa has not given its reasoning for granting the first ever patent to an AI system. The critics claimed that there is an error in application of law. Some experts even are of this opinion that, had there been a procedure like that in US and other countries of formal examination of patents, the AI system would never have got the patent rights. DABUS is said to have come up with the kind of innovation of its own type.
Critical Analysis:
No law presently inforce gives recognition to an AI system as an inventor. Every law followed by different countries across the world follows this principle that an inventor should be a natural person. The status of AI has changed a lot compared to old days which is more of science and less of fiction as it earlier used to be which is all regarding robots and computers replacing human beings. To put it in a simpler manner, AI is the ability of a machine to make simulations intelligent human act. With the growth of technology, AI in our day to day lives has assumed a much greater importance. If we come to the point of discussing the legal status of an AI, it has not gained the status of a legal personality. According to me, as we have discussed that an inventor must be a person but also there is no express provisions under the patent laws that refutes AI as an inventor. If we carefully deal with the patent laws there is no exact definition of the word “inventor”. Like the provisions of copyright law which requires a human being author and existence of his moral rights, there is no such express provision under the patent laws. The US Code mainly focusses upon the concept of inventive step and not the inventor and there is no mention of the fact that the invention shall be discarded if the inventor is not a human being. The patent office though rejected DABUS as the inventor but when it was under judicial review the Federal Court approved of it and set aside the previous decision. It gave the following ruling that an inventor is an agent noun that is an agent can be either a natural person or even a thing which invents.Even if we look into the Indian laws, an inventor is defined in terms of a natural persons, the word “person” is referred when it comes to defining an inventor. Indeed South Africa has taken a big and bold initiative by increasing the scope of invention to resolve the country’s socio-economic crisis. The issue whether an artificial intelligence system can be an inventor or not has always been a debatable issues under the patent law regime for several years. Time will tell if an AI system can become an inventor under the Indian laws but it will surely take a legislation to change this structure of the Indian patent laws before an AI can be conferred with rights of an inventor and can be termed as an inventor.
References:
- https://www.mondaq.com
- https://theconversation.com/
- https://www.surrey.ac.uk/news/worlds-first-patent-awarded-invention-made-ai-could-have-seismic-implications-ip-law
- https://www.jurist.org/news/2021/08/south-africa-approves-worlds-first-patent-with-ai-inventor/
- https://www.natlawreview.com/
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