Patents and AI
In 2021, South Africa became the first country in the world to grant a patent for an invention of an artificial intelligence (‘AI’) program. While this may seem revolutionary at first glance, the success of the application did little more than to expose fundamental flaws in the South African patents system, and the dangerous consequences that may follow for inventors and entrepreneurs alike.
WHAT HAPPENED?
DABUS, an AI system developed by a Mr Stephan Thaler, was recognised as the inventor in a patent application for a food container supposedly created by the system itself, with Mr Thaler listed as the patentee (or beneficiary) of the patent. Similar applications were filed in other countries – such as Australia, the United Kingdom, and the United States – yet South Africa was the only state in which the application found success.
WHAT DOES THE LAW HAVE TO SAY?
Section 27 of the South African Patents Act provides that an application for a patent may be made by the inventor thereof, or ‘by a person acquiring from him the right to apply…’ (emphasis added). While other legislation – namely, the Interpretation Act – exists to extend the use of this masculine pronoun to its feminine form, there is no other legal precedent that permits an inventor to be an ‘it’. Historically an inventor has always been a natural person, and courts in all other jurisdictions of the world have seen no reason to stray from this standard. Even in South African law it appears that the title of inventor cannot be extended to a computer programme…so why was the DABUS application successful?
THE PATENT PROCESS IN SOUTH AFRICA
The South African patent system is formalistic. This means that, when an application for a patent is filed with the Companies and Intellectual Property Commission (the ‘CIPC’), all that is really assessed is the presence and completion of the necessary documents. This stands in stark contrast to the aforesaid countries’ patent systems, which are procedural in nature. These systems are more thorough, and involve an in-depth investigation into the societal and economic implications a patent would have should it be granted. This, in combination with stricter interpretations of the relevant legislation, meant that DABUS was not recognised as an inventor in any other relevant state.
CAN THIS PATENT BE CHALLENGED?
Under South African law, patents cannot be opposed prior to their acceptance by the patent office. Only once the patent is granted may someone challenge the decision judicially, which is no easy feat. The matter would have to be heard in a high court, which is the likely reason this patent has not yet been opposed – instituting the matter would cost far more than any interested party would be willing to invest.
As it currently stands, AI has been recognised as a plausible patent inventor, and will likely continue to be for the foreseeable future. As an inventor or entrepreneur, it is thus imperative to assure that your inventions are protected from becoming training data for an AI, lest your hard work be amalgamated into a new patent. For any further enquiries regarding intellectual property and AI, please contact Xuba & Associates Attorneys.