South Africa grants inventor status to artificial intelligence

Man no longer has a monopoly on creation. In South Africa, an artificial intelligence (AI) has just been recognized as an inventor during a patent filing, a world first. The pioneering AI is called Dabus. It was developed by the American researcher Stephen Thaler.

In August 2020 Dabus independently designed a food container that retains heat better. If the invention is not historical, the recognition of paternity, yes. Since 2019, the team of The Artificial Inventor Project, led by lawyer Ryan Abbot, has been trying by all means to have Dabus recognized as the inventor of a patent. In all, a dozen applications have been filed, in the United States, the United Kingdom, the European Union... Without success. Until the decision of the South African patent office, on July 29th.

But why couldn't an AI be an inventor? The legal framework is still inadequate. "If until now no other office has admitted a patent with mention of an AI, it is because we consider that the inventor must necessarily be a natural person", explains Alexandra Mendoza-Caminade, professor at Toulouse Capitole University and author of 'The law confronted with the artificial intelligence of robots: towards the emergence of new legal concepts?'. The law that applies today is based on a Munich convention dating from 1973, long before the appearance of artificial intelligence, and has not evolved.

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Today AI “is not a subject of law, and has no rights. We cannot therefore recognize and protect his creations. This will be the case as long as it is recognized as a machine and a tool”, analyzes Alexandra Mendoza-Caminade.

A question far from settled

In the European Union, the question of the regulation of AI is often studied, but “the reflections are often focused on the AI ​​which represents a risk direct [for the user]”, points out the specialist in intellectual property law. We therefore wonder more about the risks that autonomous cars or data collection may represent, rather than about the question of patents. However, the recognition of paternity, or not, represents an economic stake: “If we refuse the quality of inventor to an AI, we reject the patent application. This means that its production is not protected”. The only option therefore remains to indicate a physical person instead of the machine. A solution "which does not correspond to the reality of the innovative process" but allows the patent to be obtained.

The team behind Dabus fears that this kind of rejection will end up reducing investment in artificial intelligence. “There is an increasing use of artificial intelligence in research and development to discover new pharmaceutical compounds and redirect drugs. In such cases, an invention may be patentable, but no person may be considered an inventor. Refusing a patent for artificial intelligence in such a case is a message sent to companies in the sector to stop investing in it”, supports the group in a press release.

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Despite the noise of South Africa's decision - in the legal community - it is only a first step. Specialist lawyer Kirk M. Hartung, quoted by specialist media IP WatchDog, explains that South Africa grants patents very easily "as long as the documents are completed correctly". It will therefore be necessary for other jurisdictions to tackle the question before it is really settled.

The evolution of the status of artificial intelligence could also be used to settle the question of copyright. A Chinese ruling from 2019 admitted that an AI that writes articles can create a work “within the meaning of copyright”. However, there is no question of remunerating the robots, which would have nothing to gain. Whether we are talking about patents or copyrights, it is the user of artificial intelligence who reaps the rewards.