Intellectual property law as it stands reveals a human bias as it is based on the assumption that inventions are made by humans. While legal protections exist for certain intangible human inventions such as music and books, no such protections exist for inventions conceived or created by machines.
Discrimination against machines?
Current patent legislation requires a natural person to be listed as the inventor. Whether or not an invention generated by artificial intelligence (AI) could be patented or who the owner of such a patent would be is unclear. AI has been generating scientific inventions for decades with the frequency intensifying exponentially in recent years, so does this deserve lawmakers’ attention? We would argue this is overdue.
In 2019, Siemens was denied protection in respect of a host of AI-generated inventions because it was unable to identify a person who qualified as an inventor. With the law insisting on a person being named as the inventor, one could argue it would be tempting for businesses to do exactly that, and not disclose the involvement of AI. Would it not be better for the law to recognise the real inventor?
This issue was brought to the fore in December 2019 when the UK Intellectual Property Office (IPO) rejected patent applications filed by Dr Stephen Thaler in respect of two inventions (a food container and a warning light) created by his AI system, known as DABUS, a complex set of neural networks which has the ability to generate ideas.
Dr Thaler first filed the patent applications, which stated that the applicant was not the inventor, in respect of the inventions in October and November 2018, before receiving letters from the IPO notifying him that he would need to file statements of inventorship in respect of each invention within 16 months of the filing date.
Upon filing statements in July 2019 which stated that the inventor was an AI machine called DABUS and the applicant acquired the right to grant of the patents in question by “ownership of the machine”, Dr Thaler received a response from the IPO noting that the naming of a machine as the inventor does not meet the requirements of the Patents Act 1977 (the Act).
A hearing was scheduled for November 2019 for the IPO to decide whether:
(a) a non-human inventor can be regarded as an inventor under the Act
(b) whether Mr Thaler was entitled to apply for a patent in respect of DABUS’ inventions as its owner.
Whereas the IPO accepted that DABUS created the inventions, it also found that:
- a non-human inventor cannot be regarded as an inventor and so, as DABUS is not a person, it cannot be regarded as an inventor
- (even if it were regarded as an inventor) Dr Thaler is not entitled to apply for patents as the owner of DABUS because DABUS (as a non-human) is unable to enter into a contract to assign its rights to the inventions to Dr Thaler.
The European Patent Office and the US Patent and Trademark Office reached the same conclusions in related filings. It is worth noting that neither patent office denied DABUS’ inventiveness. Dr Thaler is appealing all three decisions, with the appeal of the IPO’s decision to be heard this month, so watch this space.
Increasing use of AI
As most companies use AI as part of their creative processes (as a tool for innovation rather than an inventor), it could be argued that DABUS is a somewhat extreme example of unbridled non-human inventiveness which does not in and of itself require a shift in the law.
The World Intellectual Property Organisation admitted in its revised issues paper published in May 2020, however, the role of AI in the invention process is increasing. Accordingly, Dr Thaler’s appeals raise increasingly important questions of whether or not the law should permit patents for AI-generated inventions, and whether AI applications should be named as the inventors (so long as they otherwise meet the inventorship criteria).
Our intellectual property laws were not designed to grapple with these questions, which are likely to persist until the law catches up with reality.