It’s 2020 and clearly it was anticipated that soon enough AI will take over the world. Alas! We are all sitting in our houses contributing our best to fight against a global pandemic instead. Certainly, these are unprecedented times, but one cannot deny that technological advancements have progressed in a way no one had imagined even two decades ago. A testament to this statement is the growing number of patent applications in multiple patent offices across the world wherein applications were filed seeking recognition of AI system as inventors.
The Artificial Inventor Project is an international group of legal experts that filed patent applications in the US Patent and Trademark Office (USPTO), United Kingdom Intellectual Property Office (UKIPO) and European Patent Office (EPO) seeking patent protection over inventions by an AI system called AI DABUS. To access our previous post on this, click here. The patent was sought over two inventions by the AI system. The first invention was an interlocking fractal food container that could change shapes making it easier for prosthetic or robotic hands to grip.[1] The second invention was a warning light that flashes and mimics brain activity. It is regarded to be able to catch a person’s attention more effectively in an emergency situation. The creator of AI DABUS, Dr. Stephen Thaler named the warning light as “neural flame”.
According to Dr. Thaler, AI DABUS was trained by feeding it with immense amount of information and concepts related to design, practicality, color and intention. About the inventions, it was explained that the AI machine had ‘identified the novelty of its own idea before a natural person did’. This was the reason the applicants argued that AI DABUS should be recognized as the inventor of the aforementioned inventions.
The USPTO on 29th April 2020 ruled that artificial intelligence systems cannot be recognized and credited as inventors under the current patent laws. The UKIPO and EPO came up with similar decisions in the earlier weeks of April before USPTO came up with its ruling. In the existing legal framework, the context of inventorship only refers to natural persons. Additionally, in the European Patent Convention, the position of inventors is safeguarded through grant of several right like right to be referred to as such in the European patent applications. The case of having an AI inventor is unprecedented and AI systems do not have any such rights as mentioned above because they are neither natural persons nor legal persons in the current framework of law.
What was peculiar, however, was that the aforementioned offices were of the opinion that Dr. Stephen Thaler being the holder of IP rights for AI DABUS, could also claim his ownership on the outputs produced by AI DABUS. The offices ‘would have been happy to tick the inventor box if the applicant had replaced AI DABUS with his own name.’[2] Dr. Thaler argued that since he had not helped with the inventions, it would be inaccurate for him to claim to be the inventor.[3] The MIT Technology Review noted that the applicants were not arguing that the AI system should own a patent, but merely be listed as an inventor. It highlighted that in the times to come, when AI becomes strong enough to come up with inventions with no human close enough to take credit for it, it would be impossible to patent those inventions at all given the current laws are outdated to cover this possibility. The EPO while giving its ruling also distinguished the question of ownership from the question of inventorship and said that these were two concepts with different sets of rights associated with them.
The question of inventorship was not the only peculiarity that the aforementioned patent offices faced. There was another legal technicality associated with this situation. Even if the patent offices had accepted AI DABUS as the inventor, the problem would have arisen with regards to the legal basis on which the applicant had filed the application. According to patent laws, either the inventor himself can file an application for patent or the legal basis of filing an application can be found in assignment viz. employer filing an application for his inventor employee. Another legal basis could be if the applicant was a successor in the title to the inventor. However, in this situation, since AI system can neither be employed nor can they have any legal title over their output that could then be transferred by operation of law or agreement, the legal basis of the applicants filing the application could be challenged.[4]
To conclude, the patent laws across the world do not recognize AI systems as inventors but merely as inventing tools. However, the in-surge of similar applications has stirred a lot of debate on this issue. The UKIPO concluded in its decision over the aforementioned application by saying, “the present system does not cater for such [AI] inventions and it was never anticipated that it would, but times have changed and technology has moved on. It’s right that this is debated more widely and that any changes to the law be considered in the context of such a debate…)”. The IP5 (patent offices of Japan, Korea, China, the United States and the EPO that handle 85% of the world’s patent applications) held their first meeting of the joint Task Force on New Emerging Technologies and Artificial Intelligence on 20 March 2020 in Berlin to explore the legal, technical and policy aspects of new technologies and AI on the patent system.[5] As of now, the AI systems are not recognized as inventors under patent laws but given the whirlwind of debate that it has started, we hope to see some amendments in the legal framework soon enough to fit the purpose and account for AI machines’ creative outputs to arrive in future.
DABUS case might set a foundation for amendments in the framework of patent law for AI, as the applicant has now filed the statement of the grounds of appeal before the Board of Appeal (BOA). Krishnam will soon cover this development in his next post. Stay tuned!!!
[1] Tyler Sonnemaker, No, an artificial intelligence can’t legally invent something — only ‘natural persons’ can, says US patent office, Business Insider (29 April 2020) available at https://www.businessinsider.com/artificial-inteligence-cant-legally-named-inventor-us-patent-office-ruling-2020-4?r=US&IR=T
[2] AI and patents: a machine cannot be an inventor (yet), Allen & Overy Publications (09 April 2020) available at https://www.allenovery.com/en-gb/global/news-and-insights/publications/ai-and-patents-a-machine-cannot-be-an-inventor-yet
[3] AI cannot be recognised as an inventor, US rules, BBC News (29 April 2020) available at https://www.bbc.co.uk/news/technology-52474250
[4] AI and patents: a machine cannot be an inventor (yet), Allen & Overy Publications (09 April 2020) available at https://www.allenovery.com/en-gb/global/news-and-insights/publications/ai-and-patents-a-machine-cannot-be-an-inventor-yet
[5] Ibid.
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