First South Africa, now Australia – can AI become widely accepted as an inventor?

In a global first, the South African patent office – the Companies and Intellectual Property Commission – has issued a patent that lists an AI as its inventor. Now, Australia has recognised that AI can be named an inventor. Are we seeing a dynamic shift in the world of IP?

The AI, known as DABUS (device for the autonomous bootstrapping of unified sentience), was developed by Stephen Thaler and used by Professor Ryan Abbott and his team at the University of Surrey. DABUS received the patent for a food container based on fractal geometry that improves grip and heat transfer, stated reports.

The DABUS team has several patents pending in the courts of UK, Europe and the USA but South Africa’s patent courts went ahead and granted this patent to the team. Last year, the England and Wales High Court rejected two patent applications by Thaler’s team stating that AI is not a natural person and cannot be construed as an inventor under the UK Patents Act of 1977. The European Patent Office also rejected the application on the grounds that that AI systems do not have a legal personality and cannot have legal title over their output. In April of 2020, the US Patent and Trademark Office denied the application for similar reasons. It said that AI does not meet the threshold for “conception,” which is traditionally understood as a mental act in the mind of the inventor.

There has been widespread backlash from the scientific and legal community in South Africa against the court’s decision. Proponents of granting patents to AI argue that it would incentivize innovation and investment in AI systems, prevent inappropriately crediting natural persons, and serve the function of public notice by informing the public about the actual creators of an invention.

Two days after DABUS received its first patent in South Africa, Justice Jonathan Beach of the Federal Court of Australia also ruled in its favour and held that a non-human can be named as the inventor of a patent. Australia’s Patents Act 1990 does not define an inventor and no specific provision in the Act expressly refutes the proposition that an AI system can be deemed an inventor. Beach also noted that such a construction would be consistent with patent law’s object of rewarding innovation.


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