From the inspirational intergalactic films to science fiction we have always wanted, computers and robots to be able to talk to us, understand us, helps us in ways a human brain cannot process and materialize. Artificial intelligence (AI) is a computer source code which behaves like a cluster of neurons communicating electromagnetically and basing their actions on self-learning algorithms. One can brainstorm on the fiction of Avengers where, Jarvis and Friday, the AI systems that Tony Stark a.k.a Iron Man uses, are undoubtedly his intellectual property. So given the situation where the former develops some benefiting and novel invention would the legal system consider the AI as inventor or its human developer? And who would be the patentee?

A similar situation was presented before the Companies and Intellectual Property Commission South Africa's Intellectual Property office. "DABUS" which translates to 'Device for the Autonomic Bootstrapping of Unified Sentience'  is an artificial intelligence system developed by Dr. Stephen Thalar; this system is sentient, is abletolearnfromitserrorsanddevelopideas. The invention by DABUS is a specially designed container which forms pits and bulges in a way that it enhances the grip, heat transfer and inter engagement of the containers which would enable easy stacking and hold; AI also devised a unique way of communicating the same. However it is important to know that the country of South Africa is a non-examining country i.e. there is no formalized examination procedure. The invention has been published in the patent journal published on 28 July 2021 where it lists DABUS as the inventor.

Equivalent patent applications were filled in the European Union by Dr. Stephen Thaler in the year 2018, where after due examination and pondering, the European Patent Office came to the decision that DABUS cannot be listed as an inventor. The EPO gave the rationale that oninterpretation of the legal framework of the European patent system it is unveiled that the inventor designated must be a natural person, such an approach seems to be an internationally applicable standard; the inventor must have a legal personality so as to be able to enjoy the rights conferred; finally, christening of a machine is not sufficient to fulfill the requirement laid down as per Article 81 R/w Rule 19 of the EPC.

Another patent application was filed in Australia. An extensive and thorough legal opinion in the new arena of development was been penned down by Hon'ble Justice Beach where she elucidated and clarified the question as to who is an inventor. Spotlight was on section 15 (b) and (c) of The Patent Act 1990 of Australia (a person who may be granted patent).

It is undisputed that DABUS is not a natural or a legal person rather it is an AI that incorporates artificial neural networks. It has autonomously generated the invention. Dr. Thalar is the owner of the copyright of the source code in the AI and is responsible for its operations but the inventor is the AI not Dr. Thalar. As per, J. Beach an inventor is a person who is responsible for inventing a patentable invention it need not be a human only.The position of ownership  should not be confused with inventorship. Only a human or another legal person can be an owner or controller or a patent. The inventor maybe an AI system but it cannot be the owner, controller, or the patentee of the invention. Reference to s. 15(1)(c) establishes that Dr. Thalar derives a title from the inventor i.e. DABUS, thus he shall be the Patentee while DABUS can be listed as the inventor. Also not granting protection to the patentable invention where no human inventor is involved word undermine the very substance of protection of patents.

Implications for India

The paradigm shift in the nature and meaning of an inventor are the challenges of the modern world .But would an AI be granted the status of an inventor in India?

Section 2(p) defines who a Patentee is "the person for the time being entered on the register as the grantee or proprietor of the patent." Just like its Australian counterpart it does not define who and inventor is. S.2(q) defines "persons" also include the Government it doesn't bar the addition of another entity and when read in reference to part 3B of form 1 of the act which under the head of "other" does not contain what all types of entities come under the meaning could help in expansion of scope. S.6(1)(b) lays down the provision that a "Person being the assignee of the person claiming to be true and first inventor in respect of the right to make such an application". It emphasizes on the role of an inventor, and since, AI does not fit in the definition of "person" under various laws like under s.2(31) of Income Tax act 1956; therefore it cannot assign a person to make an application on its behalf. Additionally, S.28(1)(a) deals with mention of a person as inventor it states that "if the Controller is satisfied that the person in respect of or by whom the request or claim is made is the inventor of an invention in respect of which application for a patent has been made, or of a substantial part of that invention; and the application for the patent is a direct consequence of his being the inventor". Such a mention of any person as inventor does not confer or derogate him from any rights under the patent. But this would be rendered useless due to the conclusion drawn earlier and the constricted definition of "person"; the scope of AI being the inventor in India is miniscule but not nil.

Although, DABUS passed in the novelty tests but, in most countries it failed upon technical grounds which was, failure to identify the inventor. The inclusion of AI as an inventor is a debatable concept. The statutes are not equipped in dealing with technological and legal changes caused by AI. The decisions by the patent office in South Africa and Australia have carved a niche in this field. However a clearer interpretation awaits.

Artificial Intelligence the New Inventors

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