Artificial intelligence in the world of patenting

 Content by: Natasha Mohunlal & Associates IP Attorneys | 14 June 2022

Artificial Intelligence: Can they be regarded as an inventor?

Photo by Possessed Photography on Unsplash
Photo by Possessed Photography on Unsplash

It is not uncommon to see a robotic cleaner mopping the floor when landing or transiting through Changi airport in Singapore. These robots have been programmed to actively look for spills to mop up. The artificial intelligence of these robotics enables it to perform the functions of a cleaner 24 hours a day without any need for human supervision and/or intervention. In 2018, Dr Stephen Thaler announced that his artificial intelligence system, DABUS, invented a novel technology on its own initiative. He filed a patent application for the invention and named his artificial intelligence system, DABUS, as the inventor. This sparked a debate in the intellectual property industry and the pertinent question was whether inventions made by artificial intelligence qualifies for a patent.

Section 25 (1) of the South African Patent act 57 of 1978 states that a patent will be granted for an invention that is new, has an inventive step and has utility. Furthermore, section 27(1) stipulates that an application for an invention can only be made by the inventor or any other person acquiring such right from the inventor or both the inventor and such other person. Does this imply that an AI system can be classified as an inventor?

According to the Concise Oxford English dictionary, a person is defined as a “human being regarded as an individual”. It can be said that a person is a human being and artificial intelligence system are not classified as human beings. In addition, the drafters of the South African Patent Act most likely envisioned human beings and not robots as inventors. Thus, in that context, an artificial intelligence system may not be regarded as an inventor according to the South African Patent Act.

Ironically, Dr Stephen Thaler filed a patent application in South Africa, named DABUS as an inventor and was granted a patent! As surprising as it may sound, it is important to understand how patent officers examine patent applications that are received. When a patent application is made, the applications are examined based on the formalities and the substantive nature of the application. A formal examination process verifies that all necessary documents such as, a Power of Attorney and patent specification were submitted as well as the required fees have been paid timeously. On the other hand, a substantive examination examines the patent specification to determine if the invention being claimed is novel, has an inventive step and can be used in the Republic. Other substantive aspects of the invention are also scrutinised at this stage to determine if it meets the requirements of the patent act and a patent can be granted. Most patent offices offer both a formal and substantive examination of all patent applications received. However, South Africa conducts only formal examinations of all patent applications received. It is important to note that the South African patent office have initiated processes to begin substantive examinations, but this is yet to be implemented. This would explain why Dr Stephen Thaler succeeded in obtaining a patent in South Africa for an invention in which the inventor is not a person.

Dr Stephen Thaler submitted a patent application for the same invention to patent offices like USPTO, EU, Germany, Australia, UK that conduct substantive examination and his patent application has been rejected by all offices.

With the advancement of technology, especially artificial intelligence, it is expected that more inventions by artificial intelligence systems would become the norm. Our current patent act as it stands was not envisaged to deal with inventions made by robots. The floor is now open for discussions on whether to draft a patent act that accommodates inventions by artificial intelligence systems or modify our existing act and bring it in line with advancing technology. I vote for the former.  

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