Without a doubt, the biggest intellectual property news of the summer is that South Africa has been granted the world’s first patent for an invention by an artificial intelligence.
At first glance, the patent for a “food container based on fractal geometry”, which was issued by the South African Companies and Intellectual Property Commission on July 28, 2021, seems ordinary. But when studying it in detail, we unwittingly witness an important milestone in the development of the concept of intellectual property rights.
All because, for the first time, an artificial intelligence (AI) system was not recognized as the inventor at the official level. In the column “inventor” in the application, the name of this system is indicated – DABUS, and it also contains the clarification that “the invention was autonomously generated by artificial intelligence” (DABUS, The invention was autonomously generated by an artificial intelligence).
DABUS (Device for the autonomous bootstrapping of unified sentience), which translates as “device for autonomous support of unified sentience”, was created by Steven Thaler, one of the first experts in the field of artificial intelligence and programming. DABUS simulates human “brainstorming”, creating new inventions, therefore it is capable of independent and complex functioning and “creative work”.
The patent application, in which Steven Thaler listed himself as the applicant and DABUS as the inventor, was filed with patent offices around the world, including the United States, Europe, Australia and South Africa. But only South Africa granted the applicant a patent (Australia followed suit a few days after receiving “approval” in court).
The news from South Africa caused a negative reaction from experts in the field of intellectual property. Critics believe this was the wrong decision from a legal point of view, as AI does not have the necessary legal status to be considered an inventor. Many argue that the granting of the patent was simply a mistake on the part of the Commission.
Many also blame South Africa’s patent procedures, insisting that if South Africa had a substantive application search and examination system in place, the DABUS application would have been rejected.
It is important to note that patent applications in South Africa are not subject to a formalized patent examination procedure similar to that used in the United States, Great Britain, Canada, Europe and many other jurisdictions where the same application has already been rejected and is currently in litigation. appeal
The US and UK Patent and Trademark Offices, as well as the European Patent Office, rejected this application at the formal examination stage, citing three factors. First, their patent laws stipulate that only humans, not AI, are inventors, as evidenced by the use of pronouns such as “he” and “she” in their text. Second, for the purposes of patenting ideas, an element of “mental conception” is required – something that only the human mind is capable of. Finally, being recognized as an inventor gives rights that AI cannot own or dispose of.
Indeed, the absence of a formalized application procedure in the South African patent system appears to have been a motivating factor for Thaler to seek patent protection in that country. Thus, it is not surprising that this patent was issued, but the final legal meaning of this decision remains to be determined.
As the patent is now officially published by the South African Companies and Intellectual Property Commission, it is open to objections for novelty and inventive step.
Sources:
https://iponline.cipc.co.za/
https://theconversation.com/in-a-world-first-south-africa-grants-patent-to-artificial-intelligence-system-165623