For the first time, a patent application where an Artificial Intelligence is listed as Inventor, was granted by South Africa. Soon after, in a case between Thaler v Commisioner of Patents [2021] FCA 879 , Australian Federal Court held that artificial intelligence systems or devices can be ‘inventors’ for the purpose of the Act. Australian Patent Act does not preclude non-humans from being recognized as invetors.

This feat was achieved by University of Surrey professor Ryan Abbott and his team, who represented Dr Stephen Thaler, creator of an artificial neural system named DABUS (Device for the Autonomous Bootstrapping of Unified Sentience). According to Dr Stephen Thaler, a pioneer in the field of AI and programming, the AI system simulates human brainstorming and creates new inventions. Before he applied for a patent for an invention developed by DABUS, he filed a patent application for a cross-bristle toothbrush design, another AI developed invention. However, this patent application was filed with Dr Thaler’s name as the inventor and was granted. As for his next application for patent for the invention titled ‘Food container and devices and methods for attracting enhanced attention’,   Dr Stephen Thaler listed the AI system DABUS as the sole inventor.

Patent applications listing DABUS as inventor were filed with many Patent Offices around the world, however, many Offices such as UK Intellectual Property Office, European Patent Office and US Patent and Trademark Office refused to grant a patent on the premise that Artificial Intelligence is not a ‘natural person’.

United States, United Kingdom, Japan, China and India describe an ‘inventor’ as a natural person. Currently many patent laws around the world accept only a natural person as an inventor. These countries will find it difficult to grant inventions with AI as inventor, even though the invention itself might qualify all the technical requirements of patentability.

With the emergence and advancement of AI in various industries, which is only growing wider by the day, and with more scope for inventions coming out of AI in future, the world will have to debate on the merits of inclusion of AI as an inventor. Professor Adrian Hilton, Director of the Institute for People-Centered AI at the University of Surrey in the UK, said that the world was moving from an age in which invention was the preserve of people to an era where machines are capable of realizing the inventive step.

There have been instances in the past where patent laws were amended, for example when the issue of patentability of computer programs or micro-organisms came to the fore. Exclusions were made in such instances by including certain clauses in patent law to allow inventions where a computer program provides a technical effect beyond the standard functioning of a computer or where the microorganism is genetically modified.

It is in the spirit of patent law to name an inventor as such. However, due to the current requirement in patent law where only a person can be an inventor, many inventions which are rightfully attributable to AI are being filed in the name of an individual to overcome this gap in law. It has to be kept in mind that since the person who is named as an inventor would not have substantially contributed to what the AI had created, it is a legally risky proposition to name a person instead of the true inventor. Therefore, in a scenario where increasingly inventions are created by AI, the gap in patent law to recognize AI as inventor have to be addressed on an immediate basis, for protecting such inventions, as this could put investment in AI at risk.


Dhanya Ramachandran

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