Can AI Be Listed As An Inventor? South Africa and Australia say YES!

Last year, the USPTO confirmed that artificial intelligence (AI) cannot be listed as an inventor on a patent application. Now, an Australian court has ruled that AI systems can be legally recognized as inventors in patent applications.

The decision in Australia came just a few days after South Africa became the first country to recognize an AI as an inventor.

The AI system at issue is called DABUS, which stands for "device for the autonomous bootstrapping of unified sentience."

As ABC News of Australia reported, “DABUS is essentially a computer system that's been programmed to invent on its own.”

Stephen Thaler, the creator of DABUS, has been working with a global patent legal team for two years to get DABUS recognized as an inventor on patent applications.

As ABC News reports,

The first invention is a design of a container based on "fractal geometry" [shown above] that is claimed to be the ideal shape for being stacked together and handled by robotic arms.

The second application is for a "device and method for attracting enhanced attention", which is a light that flickers rhythmically in a specific pattern mimicking human neural activity.

In the case of Thaler v Commissioner of Patents, the Federal Court of Australia was reviewing a decision by the Australian Deputy Commissioner of Patents that the Australian Patents Act was inconsistent with an AI machine being treated as an inventor.

The judge stated,

in my view an artificial intelligence system can be an inventor for the purposes of the Act. First, an inventor is an agent noun; an agent can be a person or thing that invents. Second, so to hold reflects the reality in terms of many otherwise patentable inventions where it cannot sensibly be said that a human is the inventor. Third, nothing in the Act dictates the contrary conclusion.

The court found that the Deputy Examiner had confused “who can be a patentee, on the one hand, with the question of who can be an inventor, on the other hand.”:

Only a human or other legal person can be an owner, controller or patentee. That of course includes an inventor who is a human. But it is a fallacy to argue from this that an inventor can only be a human. An inventor may be an artificial intelligence system, but in such a circumstance could not be the owner, controller or patentee of the patentable invention.

In this case, DABUS is the inventor, but Dr. Thaler owns the patented invention.

As ABC News notes, the law must wrestle with AI “creators” in other intellectual property contexts. For example,

In 2018, an AI-generated artwork on auction at Christie's sold for more than $600,000. Since then the AI art industry has been drawing in a steady stream of interest and income, made even more lucrative with the arrival of NFTs (non-fungible tokens).

But under current laws, AI-generated artworks can't be protected by copyright, which automatically protects original creative works.

US copyright law also doesn’t protect the IP rights of monkeys with cameras or other non-human creators.