AI inventorship: The right decision?

Abstract

How should our patent system deal with inventions by artificial intelligence (AI) systems?The first hurdle to patenting an invention by an AI system is for the AI system to qualify as an inventor in our current patent law.South Africa's Patents Act 57 of 1978 refers to an inventor as 'him'.The Interpretation Act 33 of 1957 provides that reference to the male gender includes the female.However, does 'him' include an AI inventor (as opposed to a human inventor)?If one adopts a literal reading, and assumes that an AI system cannot be referred to as 'him', the answer would be no.But is it the purpose of the Patents Act to only provide patent protection to certain kinds of inventions, namely human inventions, and not AI inventions?This question rapidly entered the realm of reality with the news that South Africa's Patent Office (SAPO), which runs under the auspices of the Companies and Intellectual Property Commission, granted a patent for which the inventor is an AI system.[1][2][3] The AI system, called DABUS (an acronym for 'device for the autonomous bootstrapping of unified sentience'), was created by American AI entrepreneur Dr Stephen Thaler.DABUS invented a new food container, which was the subject of the patent application.4 In the patent application, Thaler is indicated as the patent owner, and DABUS as the sole inventor.This patent application was not restricted to South Africa.Thaler also submitted the same food container patent application in various other jurisdictions.In light of the fact that DABUS's food container patent application had already been rejected by the leading patent offices of the world, namely the European Patent Office (EPO) 5 and the United States Patent and Trademark Office (USPTO) 6 , SAPO's decision to grant a patent, for which DABUS is the inventor, was received with a mixture of fascination and disbelief by the intellectual property (IP) community.1,7,8 In fact, some commentators even thought that the SAPO decision was an error, or an oversight due to South Africa's formal (but not substantive) examination system for patent applications.[7][8][9] In this Commentary, we suggest that the SAPO decision -whether intentional or not -was the right decision from a legal perspective.The SAPO decision was soon to find support -although implicit and from a different jurisdiction.Just a few days after publication of the SAPO decision, the Australian Federal Court handed down a judgement that is likely to have the same effect as the SAPO decision.