Artificial Intelligence can be the Inventor on Australian and South African Patents

Artificial Intelligence (AI) may still have a long way to go in certain applications (think of the hilarious autocorrect errors we’ve all seen), but in Australia and South Africa AI can now be named as the inventor on patents.

Dr. Stephen Thaler, creator of an AI machine known as DABUS (Device for the Autonomous Bootstrapping of Unified Sentience), has applied for two patents covering inventions developed by DABUS. To date, he has submitted the applications in dozens of countries.

The AI Inventions

The first is a design for a container based on “fractal geometry” that is said to be the ideal shape for handling by robotic arms.

fractal shape

The second is a “device and method for attracting enhanced attention,” which is a light that is claimed to do a better job at getting human attention because it flickers in a way that mimics human brains. 

flickering light

The patent application was rejected in the UK, the US, and the EU, and courts have upheld the rejections. South Africa was the first patent office to accept the applications with DABUS as the inventor; Australia is the first court that has ruled in favor of Thaler, overruling the Australian patent office, which didn’t want to grant the patents.

Why Does it Matter if AI Can be the Inventor?

AI has been used to assist inventors for some time, but there’s a big step in going from assisting inventors to autonomously coming up with an invention. There are several cases in addition to Thaler’s where companies have been unable to obtain a patent for an AI-generated invention. In 2019 Siemens wasn’t able to get a patent on a new suspension system because it was designed by AI.

Obviously human engineers had to review the design and decide if it was any good; couldn’t the company simply put one or more of their names on the patent application?

The human engineers refused to have their names on the application: in the US at least, there are criminal penalties for listing the wrong inventor on a patent application, and if the engineers had no input to the creative process, they couldn’t honestly say they were the inventor who came up with the idea.

This is potentially a very big deal in the pharmaceutical industry, where AI can be far more efficient in finding and screening new compounds than humans. With drugs being very easy to copy, strong patent protection is the foundation for all new drug development. Without patent protection, no company would invest the tens of millions of dollars or more required to get regulatory approval and bring a new drug into production. Not allowing AI-designed drugs could have a serious negative impact on public health. Pharmaceutical companies argue it makes no sense that the same exact compound identified by a human is patentable, but if it’s identified by a computer, it’s not.

What Next for AI Patents?

Thaler’s Australian lawyer, Richard Hamer, said that he expects the judge’s 41-page ruling will be seen as a precedent in other jurisdictions and is an important milestone in securing wider acceptance for AI as inventor. Court cases are expected to drag on for years, and it will be some time before there is wide international acceptance. In the meanwhile, AI inventions protected by Australian and South African patents (not the world’s largest markets) could be easily copied and sold elsewhere without regard to those patents. The real and important challenge is getting recognition in the major patent jurisdictions such as the US and the EU.

Who Owns DABUS’S Patents?

It should be noted that DABUS is not recognized as an entity that can have any rights in a patent; it’s only recognized as an inventor. Thaler (or his company) is the owner of the patent and accompanying rights. Which raises an additional interesting question: normally, the inventor is assumed to have the rights in their invention. They must assign the rights (if they wish) to someone else, typically their employer. Does an AI have sufficient intelligence to assign rights? Is it sufficient to program it so that it outputs a statement that it assigns its rights?

AI Patents and Patent Drawings

As is the case with any patent application, patents based on inventions created by AI will need patent drawings. AI may be great at some tasks and may be capable of coming up with valuable inventions, but if our experience with autocorrect is any indication, patent applicants would want to have a human patent illustrator review any drawings that an AI came up with to make sure they were in compliance with patent office regulations and practices.

Whether your invention was created by a human genius or an artificial one, we stand ready to assist you with your patent drawing needs. Contact us for more information.