This article is written by Tripti M Kumar, pursuing a Diploma in Intellectual Property, Media and Entertainment Laws, from LawSikho.
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We have all watched the jaw-dropping movies that show Artificial Intelligence taking over the world and ending humanity. Well, there is nothing to worry about; we’re not the slaves of the AI, yet! But one thing that AI has recently achieved is patent status. In this article, I’m going to be talking about something astounding that has happened in the world of patents. The patent office in South Africa has for the first time in the history of intellectual property granted a patent to an AI. Yes, you read that right, a Patent where the creator is an Artificial Intelligence. This AI goes by the name of “DABUS” (Device for Autonomous Bootstrapping of Unified Sentience).
DABUS (Device for Autonomous Bootstrapping of Unified Sentience) is a “creative machine” that can generate ideas without human intervention; it is developed by Dr. Stephan Thaler and used by Professor Abbott and his team from University Surrey. DABUS has been trained to develop new ideas; recently the two inventions that are applying for a patent were independently created by DABUS. The registration was filed in 2019 by Dr. Thaler as the patent owner, but DABUS was named the inventor.
DABUS vs. Patent offices across the world?
Such patent applications have been made in various other countries as well and it has received a mixed response from the authorities. The European Patent Office (EPO) has rejected such applications on the ground that artificial intelligence is not a natural person/ real entity and therefore cannot claim to be an inventor under their respective law, and that legislation is necessary to create a legal personality for AI systems or machines because “Legislative history shows that the legislators of the European Patent Convention (EPC) agree that the term ‘inventor’ refers only to natural persons.” The same goes for the High Court of England in Wales that rejected the application made by DABUS.
U.S trademark office has also rejected the application on similar grounds which was followed by a publication of a Petition by USPTO stating that only natural persons can be named as an inventor in the application under the US patent system. Although the U.K. Intellectual Property Office (UKIPO) acknowledged that DABUS was responsible for the invention, however ordered the withdrawal of the application because DABUS was not an inventor in the legal sense. However, UKIPO pointed out that artificial intelligence inventions’ may become more common, and it is correct to discuss these issues because the current patent system does not provide a way to deal with such creations.
However, Justice Beach J from Australia in the case of Thaler v Commissioner of Patents  FCA 879 held that there is nothing in the Australian Law that prohibits an artificial intelligence from filing an application or being mentioned in a patent application as an inventor, and hence should be permitted. Further the court recognized that extensive role of artificial intelligence in drug research is an example of its invention and technical contributions, which show that narrow “inventor” views should not be used. Although “inventors” originally described people who were only humans and who could invent in the same way as “computers” and other proxy terms, they are now used to describe machines that perform the same functions, he said. Adding to this, the court said that there was no basis for the exclusion of AI as an “inventor” in the sense of the patent law and “a class of other patentable inventions resulting from the exclusion in the wording of the law.” This runs counter to the promotion of innovation.”
This particular application required patent offices, courts, and legislators to deal with outdated patent practices. For decades, people have been claiming inventions that are generated by artificial intelligence, but there has never been an instance where the same AI has been named as the inventor in the application. No country/region has laws that specifically stipulate whether artificial intelligence-generated inventions can be patented, who or what is considered as an “inventor”, or provide ownership of artificial intelligence-generated inventions. Most jurisdictions have historically restricted inventory to natural persons to prevent corporate inventory. In principle, this should not be used to deny the protection of AI-generated works.
Patent in India
The Indian patent system that’s still at its growing stage has its take on the whole situation. Although DABUS reportedly did file a patent application in India which is still pending, let us for instance imagine what would happen if this case is taken up:
The normal procedure for filing a patent in India can be checked out on the official IP page from the Government of India, which is
- Check the novelty of the invention
- Draft the patent application
- Filing the patent application- there are numerous form that needs to be filled which one can find here
- Publishing the patent application
- Examination of the patent application
- The decision of grant of patent
- Renewing patent
Now, we’re talking about the patent Application Form 1 which is one of the forms one has to fill. Category 3B of the said forms is “CATEGORY OF APPLICANTS”, under which there are two categories of applicants given namely:
- Natural Person
- Other than Natural Person: a) Small Entity b) Start-up c) Others
If the applicant is the same as the inventor they need to check the box saying all the inventors are the same as the applicant named above.
Here the word “Other” has not been described which leaves a lot of scope for non-entities to uphold status as applicants. Further, there is not much definition given to the word “inventor” but just “true and first inventor” but Indian Patent Act defines the word “patentee” as the guarantee/proprietor of the said invention. Section 2(p) read with Section 6 of the Act sets rules for the possibility of an AI being named as the patent holder.
Why it might be a problem
Various jurisdictions have already given their decisions on whether DABUS should be awarded the patent for its application, then why is the case still stirring pots? The answer lies in the mechanism of granting a patent itself. Patents have been granted to its “true and first inventors” for mainly two reasons; Monetization & Recognition. It is fascinating on various accounts. The law of patent has been created in a manner that it creates a barrier, a sort of artificial monopoly around the inventor of the patent which enables them to commercially exploit the said creation for the period. Secondly, the system of IP also rewards the inventor with recognition and acknowledges the inventor’s share in the field.
The question that arises then is, how are these tenets addressed in terms of the needs of an AI? Will AI have the same needs as an Inventor who is a natural person?
If the AI that has filed the application is looked at as a corporate entity maybe it can solve one part of the dilemma. But as of now there isn’t much clarity on this and is still up for debate.
Patent and other AI encounters
Technology has come so far, and so it shouldn’t be surprising that the patent community has already crossed paths with AI before. One such instance is the introduction of BERT which stands for Bidirectional Encoder Representations from Transformers. If we were to put BERT’s mechanism in simple words, it is an NLP (Natural Language Processing) framework. How it is being proposed to work for the patent community is that it has been trained on millions of patent documents and was trained on all parts of a patent (abstract, claims, description) which helps find novelty in an idea.
In short, BERT is trained to go through millions of pre-existing inventions and check the novelty of the invention in question. This will exponentially decrease the hard work that goes behind examining a patent application.
While such inventions are generally believed to be inconsistent with the concept of human inventions, it is still largely unclear to what extent concerns about “non-human” ingenuity are warranted. The least certain is how artificial intelligence “produces” inventions itself and how it differs from inventions that were developed with artificial intelligence. I think as long as humans give instructions and directions that determine how input and output relationships are to be calculated, and as long as computers are bound by these instructions, there seems to be no reason to believe AI-generated inventions should be treated differently.
As discussed earlier, thousands of AI patent applications have been filed with the United States Patent and Trademark Office, DABUS’s patent is the first patent to name AI as an inventor. Therefore, applying for these patents may put pressure on the patent office and the courts to resolve these outstanding issues sooner than expected. We see the rapid development of technology, and some machines with sufficient computing power are considered creative. The current patent system needs to keep up and for that, some developers advocate that artificial intelligence inventors be viewed as the driving force in the new age.
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