Australian court says artificial intelligence can be named inventor on patents

in August 20th, 2021

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Patents are intended to encourage innovation. These legal documents publicize the invention, including its owner and inventor. While the same person can be both, in many cases the owner (who owns all rights to the invention) is different from the inventor (who helped conceive the invention). A patent may also have multiple inventors, though dual-ownership is discouraged. But what happens if the inventor isn’t even human?

This brings us to the debate over artificial inventorship. As technology advances, artificial intelligence (AI) is increasingly able to create and invent. Let’s say a pharmaceutical company develops two new drugs: one by its AI and one by an employee. Current patent law definitions prohibit that AI from being listed as the inventor on a patent, but the employee can proceed as usual. And since patent rules are strict about ensuring the listed inventors are the actual inventors, the title of “inventor” can’t simply be stuck onto the closest human in place of the AI. This makes it impossible for some AI inventions to get legal recognition, which some argue will stifle innovation.

But some are trying to change that, finding success recently in Australia where a court decided AI can be credited as an inventor on a patent (just weeks after South Africa became first in the world to do so). The case specifically cites an AI program called DABUS that has so far invented a type of robot-friendly container and a light mimicking neural activity. DABUS’ creator has been working since 2019 to convince courts that AI can and should be inventor eligible. He has faced dismissals from courts in the U.K., U.S., and Europe. Opponents have specific concerns in mind, namely in enforcement, speed of innovation, and ownership.

  • First, how would such AI be regulated? The laws in place were written at a time when non-human invention was not a consideration. Many are calling for legislative changes but also recognize that it may be a slow journey.
  • Second, what if the AI creates a harmful invention? While there weren't specific concerns mentioned, an overall fear lingers over these debates.
  • And who ultimately owns the intellectual property? Without guidelines, there could be a number of potential IP owners for an AI-generated invention: the AI’s developer(s), the people who supply the data, or the team that trains the data.

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