September 23, 2021

AI: Artificial Inventor?

It appears so, at least in the eyes of the Australian Federal court, which has gone out on a limb and determined that a machine can be inventive, too!

So, why is this a big deal?

The Australian Federal Court has departed from the decisions of its international counterparts (and its own patent office) with its finding (in Thaler v Commissioner of Patents) that an artificial intelligence called DABUS is an inventor and can be recorded as such on a patent application. The Court’s Trans-Tasman cousins could shortly follow suit (despite not being invited to the AUKUS party).

What is DABUS?

DABUS is a system of Artificial Neural Networks, which are essentially a collection of algorithms modeled after the human brain. Stephen Thaler, DABUS’ creator/inventor, describes DABUS (presumably with tongue firmly in cheek) as “sentient”. Although that might be a stretch, the tech behind DABUS is still pretty impressive.

DABUS’ patent applications

So far, DABUS has generated two ‘inventions’ that Dr Thaler has applied to patent.

IP Australia initially rejected the DABUS patent applications as, in its view, an “inventor”must be a human. Dr Thaler appealed that decision, and after undertaking a considerable statutory interpretation exercise, the Federal Court agreed with Dr Thaler that an inventor doesn’t need to be human and DABUS could invent (potentially) patent able inventions.

IP Australia has recently appealed the decision to the Full Federal Court, on the basis that the finding that an inventor can be non-human is incompatible with existing patent law. Interestingly, (and this is good news for those of us who believe IP law needs to be updated to incentivise the beneficial aspects of machine creativity and inventiveness) it stressed this appeal does not represent an official government position on whether an AI can,or should, ever be considered an inventor, just that AI cannot be an inventor under Australia’s current law.

While the issue ultimately comes down to how each country has drafted its patents legislation, Australia does appear to be out of step with the rest of the world. The same issue recently arose in the USA, with a very different outcome.

The USPTO rejected patent applications for DABUS’ inventions,deciding only “natural persons” can be considered inventors. Thaler appealed to the US District Court, which followed previous authority, and found DABUS was not natural enough, rejecting Thaler’s appeal. However, in a hat tip to AI, the judge said it may one day be sophisticated enough to be considered an inventor,but ultimately Congress needed to decide if it wanted to expand the scope of patent law.

The EU and UK have also rejected Dr Thaler’s claims DABUS can be an inventor.

What about in New Zealand?

Here in New Zealand, well, not much has happened yet with the DABUS’ patent application currently being examined by IPONZ.

However, New Zealand may end up following Australia. Its Patents Act is relatively new, only eight years old (a mere babe in the global sense) and includes a much more permissive / inclusive definition of inventor,for example:

  • the primary definition states that an inventor is the “actual deviser of the invention”, so no explicit requirement for a human inventor there; and
  • corporations (the law’s favourite non-human“persons”), which have always been capable of owning patents, are specifically contemplated as being inventors for the purposes of grace periods, so there seems to be no philosophical opposition to a non-human inventor.

So, will New Zealand join Australia in being a beach-head for the rise of the (inventive) machines? It remains to be seen, but New Zealand’s ‘plain English’ and principles based legislative drafting style is likely to help.

If DABUS clears that hurdle, IPONZ will still need to decide if a fractal geometry derived food container (aka a lunchbox according to Tim) is actually inventive or not.

Thankfully New Zealand’s legislative framework appears sufficiently progressive, so we might actually get to have that conversation! After all, in the words of an Australian Federal Court judge: “We are both created and create. Why cannot our own creations also create?”

Related articles:

Rise of the Creative Machines

Social media credit: Viktor Talashuk

“We are both created and create. Why cannot our own creations also create?”

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