An overview of the evolution of AI systems

Artificial Intelligence (AI) is a term that was first coined by John McCarthy from Dartmouth University in 1956. AI systems facilitate machines to comprehend and achieve complex tasks or goals. Often, AIs engage in deep learning or machine learning that would help the AI system absorb enormous amounts of data. Over the years, several Governments have funded AI technologies in order to foster technological developments in their respective countries. For instance, in 1980, the British government had copiously funded AI-related technologies anticipating competition with the Japanese. Government funding and various other factors in the past have fueled the progress of AI developments on a global level. In 1997, IBM’s Deep Blue, a chess-playing computer, was known for beating Russian Grandmaster Gary Kasparov. In today’s world, AIs have established their prominence in services ranging from personal assistants to self-driving cars. As of 2021, the NVIDIA DGX is considered to be the most powerful AI supercomputer that can power large-scale universal AI workloads. Moreover, today’s AI systems are capable of independently cultivating thought processes and creative functioning. AIs and their abilities to independently ‘think’ have contributed to the creation of patentable inventions. However, the intersection of AI systems with Intellectual Property laws has snowballed into several legislative complexities. Most recently, the DABUS case has explored and evaluated the recognition as well as non-recognition of AIs as inventors of patentable innovations.

DABUS case: Brief facts

Device for the Autonomous Bootstrapping of Unified Sentience (DABUS), the brainchild of Dr. Stephen Thaler, was the first-ever AI system that was listed as the inventor in a patent application. The AI system aimed to seek patent protection for a computational invention that was created back in 2018-19. DABUS’s application marked a watershed moment in the history of patent law since no AI, prior to DABUS, had attempted to list an AI as an inventor for patent protection purposes. The application was filed in various patent offices across the globe, including the European Patent Office (EPO), the US Patent and Trademark Office (USPTO), the Australian Patent Office, the South African IP office, and the United Kingdom IP office.

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Decisions are taken by patent offices and courts across the world

European Patent Office (EPO) and their grounds for refusal

The EPO rejected the European patent application that was filed by Dr. Stephen Thaler. The EPO contended that the patent application was rejected on the grounds that the contents of the application did not meet the legal pre-requisites or requirements of the European Patent Convention. More specifically, the European Patent Convention makes it mandatory that the designated inventor of a patent application has to be a natural person. Since DABUS was a machine or an AI system, it did not meet the legal requirements under the European Patent Convention. The EPO noted that the term inventor must refer to a natural person and that it is an “internationally applicable standard” that various national courts across the world have propounded. Additionally, it was noted that inventorship must be attributed to a person who possesses a legal personality so that the inventor bears legal consequences pertaining to the patent or the patent application. Since AIs do not possess a legal personality, it would be inherently wrong to recognize an AI as the inventor.

The decision of the United Kingdom IPO

The UK IPO did not proceed with Dr. Stephen Thaler’s patent application. The IPO contended that Thaler’s patent application did not meet the statutory requirements pertaining to inventorship in a patent application. However, upon UK IPO’s refusal, Dr. Thaler appealed to the High Court. Upon appeal, Justice Smith adjudicated that according to the provisions of the Patent Act of 1977, it is abundantly clear that inventorship must be attributed to a natural person. Subsequent to the High Court decision, Dr. Thaler appealed to the Court of Appeal. However, the appeal was dismissed through a split judgment. The three-judge bench agreed that it is imperative for the inventor to be a natural person. Justice Arnold added that "[W]e must apply the law as it presently stands: this is not an occasion for debating what the law ought to be." On entitlement, he noted:"[A]although Dr. Thaler contends that he is entitled to apply for patents in respect of the inventions as the owner of DABUS by virtue of a rule of law, there is no such rule." Judge Arnold concluded that the patent applications must be withdrawn with immediate effect since it does not comply with statutory requirements proposed by patent laws in the UK.

The decision of the United States Patent and Trademark Office (USPTO)

The USPTO rejected Dr. Thaler’s patent application as well. It was contended by the USPTO that the Federal Circuit case law pertaining to inventorship makes it mandatory that the inventor must be a human being. Judge Brinkema of the Virginia Eastern District Court held that the USPTO’s interpretation that an inventor must be a natural person is correct under the law. Judge Brinkema also added that expanding the scope of inventorship is dependent on how much AI systems can evolve over the years. She explained: “As technology evolves, there may come a time when artificial intelligence reaches a level of sophistication such that it might satisfy accepted meanings of inventorship. But that time has not yet arrived, and, if it does, it will be up to Congress to decide how, if at all, it wants to expand the scope of patent law."

The decision of the Australian Patent Office

The Australian Patent Office rejected the DABUS patent application. However, Dr. Stephen Thaler appealed to the Federal Court. Surprisingly enough, Dr. Thaler’s appeal succeeded in the Federal Court. Justice Beach adjudicated that none of the provisions of the Patent Act 1990 excludes an inventor from being a non-human AI system or a machine. Additionally, it was concluded that an inventor under the Patent Act can be an AI system or a machine. However, the non-human inventor cannot be considered as the applicant or a grantee of a patent. Lastly, it was contended that recognizing an AI as an inventor would promote innovation to a great extent.

The decision of the South African Patent Office

In the world’s first, South Africa’s patent office has granted the patent for an invention that was created by an AI inventor. It is pertinent to note that South Africa does not have an extensive patent examination system. Therefore, South Africa did not carry out elaborate formalities to examine the patent application. Moreover, it was noted that the DABUS patent was granted by the Companies and Intellectual Property Commission of South Africa based on an application under the Patent Cooperation Treaty.

Author: Sanjana, a BBA LLB student of  Symbiosis Law School (Hyderabad),  in case of any queries please contact/write back GLOBAL PATENT FILING at support@globalpatentfiling.com.