For the first time in history - Australian court rules that artificial intelligence can be registered as an inventor in a patent
Sounds like science fiction? Science Yes, Fiction No!
By Dr. Ilan Cohn *
In the last month, the Australian court has set a global legal precedent, according to which an artificial intelligence system can be registered as an inventor under a patent. Although the decision is not a formal legal precedent, it may be the first far-reaching change in the realm of intellectual property, science, technology and business.
Artificial Intelligence
Artificial Intelligence (AI) is a general term that describes how computers can automatically perform actions and tasks that require human intelligence. This is done through algorithms that automatically learn certain patterns and operations (machine learning), or the use of artificial neural networks (deep learning) that enable information processing and independent decision-making.
Who invented the AI invention?
Legal rights over works and inventions created by AI have been examined many times by international professional forums. In most countries, inventors must be mentioned in order to obtain a patent for an invention, resulting in a built-in difficulty in obtaining a patent originating from AI operations.
Additional and complex questions arise: Does such an invention meet the criteria of patentability? Who is the owner and who is the infringer of such a patent? The basic purpose of the patent system is to encourage innovation through granting rights - is this needed when the innovator is an AI system.
Australian precedent
Dr. Stephen Thaler, the plaintiff in the precedent-setting case in question, is a well-known figure in the global AI industry. DABUS (Device for the Autonomous Bootstrapping of Unified Sentience) , designed to overcome challenges in complex artificial neural networks, is responsible for two inventions that it developed entirely on its own. One of them is a new drink container for which a patent application has been filed in Australia.
Thaler named DABUS as the inventor in the patent application, but it was rejected by the Australian Patent Office. As Australian Patent Law does not define the term "inventor", the main claim of the Australian Patent Office was that the definition of the term is human in nature and required to be human.
In contrast, the judge held that as long as there is no specific provision in the law that prevents the AI system from being a patent inventor, the patent application can't be disqualified based on that argument. The judge stressed that renunciation of AI inventor rights constitutes an antithesis to the purposes of the law and expressed the opinion that Thaler, as the owner and controller of DABUS, would be the owner of all the inventions made by it. The judge went so far as to say that there is no need for the inventor to be the owner of the invention, and there is no need for the title of inventor to be derived by assignment.
Corresponding patent applications have also been filed in other countries. In South Africa, the patent was registered, while in the US and Europe the cases are currently pending before the US Federal District Court and the institutions of the European Patent Office.
And in Israel?
In an Israeli patent application there is no obligation to indicate the identity of the inventors. Thaler filed patent applications in Israel with the inventor listed as AI, but these were recently denied. It is conceivable that this matter will come up for discussion and decision by the Israeli Patent Office or the court at some point.
Inventions of AI systems - where we are headed
Accelerated technological developments may soon make AI inventions a matter of routine and researchers from MIT, Harvard, and other universities anticipate that this trend will be an "invention method" that will change all research and development processes. The consequences may be far-reaching - the use of AI technologies of all kinds may become relatively easy and give an advantage to strong and established companies. This move may lead to a "monopoly" on innovation and the absence of additional players in the world of innovation - something that harms the essence of patents and encourages research.
Other commentators even point out that AI inventions will require a redefinition of patent registration criteria and will even raise the status of AI as a separate legal entity that can independently hold and exercise property rights. Proponents believe that the registration of such patents will encourage exposure and the creation of innovations.
At this stage it is not yet possible to predict how this policy will develop and change the world of patents, but it is already advisable to formulate at least a uniform international policy.
*Dr. Ilan Cohn is a patent attorney and founding partner at Cohn, de Vries, Stadler & Co.
Originally Published 29 August 2021
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