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24 “Only a human or other legal person can be an owner, controller or patentee. That of course includes an inventor who is a human. But it is a fallacy to argue from this that an inventor can only be a human.” – Justice Beach
The Federal Court of Australia on Friday ruled in Thaler v Commissioner of Patents [2021] FCA 879 that an artificial intelligence (AI) system can be an inventor under the Australian Patents Act.
The Honorable Justice Beach, in a very thorough judgment, set aside the decision of the Deputy Commissioner of Patents that patent application no. 2019363177 did not comply with reg 3.2C(2)(aa) of the Patents Regulations 1991 (Cth), which “requires that the applicant, who in this case is Dr Stephen Thaler, must provide the name of the inventor of the invention to which the application relates.”
The Deputy Commissioner of Patents said that Thaler could not name an inventor because the inventor he had named, the AI system DABUS, simply cannot be an inventor under the Act. But Justice Beach said “that position confuses the question of ownership and control of a patentable invention including who can be a patentee, on the one hand, with the question of who can be an inventor, on the other hand.” He continued:
Only a human or other legal person can be an owner, controller or patentee. That of course includes an inventor who is a human. But it is a fallacy to argue from this that an inventor can only be a human. An inventor may be an artificial intelligence system, but in such a circumstance could not be the owner, controller or patentee of the patentable invention.
The Deputy Commissioner, and the Commissioner in supporting arguments, had taken the view that, since “inventor” is not defined in the Act, its “ordinary English meaning” should apply, and “the ordinary meaning of ‘inventor’ is inherently human,” wrote Justice Beach, explaining the Commissioner’s view.
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Justice Beach in his analysis made six general observations:
- There is no provision that expressly refutes AI as an inventor.
- Unlike copyright law, patent law does not require a human author or the existence of moral rights.
- The word “inventor” is an agent noun, in which “the suffix ‘or’ or ‘er’ indicates that the noun describes the agent that does the act referred to by the verb to which the suffix is attached. “Computer”, “controller”, “regulator”, “distributor”, “collector”, “lawnmower” and “dishwasher” are all agent nouns. As each example demonstrates, the agent can be a person or a thing.Accordingly, if an artificial intelligence system is the agent which invents, it can be described as an ‘inventor’”.
- Like other areas of patent law, such as the term “manner of manufacture,” the concept of “inventor” should be flexible and capable of evolution. Justice Beach wrote: “There is a synergy ifnot a symmetry in both being flexibly treated. Indeed, it makes little sense to be flexible about one and not the other. Tension is created if you give flexibility to “manner of manufacture” and then restrict “inventor”. You would be recognising an otherwise patentable invention and then saying that as there is no inventor it cannot be patented.”
- The Commissioner should have construed the Act in line with the “recently inserted object clause”, which reads:
The object of this Act is to provide a patent system in Australia that promotes economic wellbeing through technological innovation and the transfer and dissemination of technology. In doing so, the patent system balances over time the interests of producers, owners and users of technology and the public. - The Act is really focused on the concept of “inventive step” and not the requirement of an inventor at all. Justice Beach wrote: “There is nothing in ss7(2) and 18(1) requiring an ‘inventor’ as such, let alone only an inventor who is a legal person. There is no ground of invalidity based upon the absence of any ‘inventor’, let alone the absence of an inventor who is a legal person. Further, there is nothing in s 40 that makes ‘inventor’ and an inventor who is a legal person of any relevance.”
Australia does not have automatic substantive examination; an applicant must request examination within five years after filing a patent application for a standard patent. Since the application is only at the formalities stage of the process, Justice Beach said, “the only requirement is that an inventor be named.”
The ruling marks the second win for DABUS in the last week. South Africa’s patent office granted the first patent for an invention conceived by an AI inventor, DABUS. The country does not have a substantive patent examination system, however.
As a result of Justice Beach’s opinion, the Deputy Commissioner’s determinations are set aside and the patent office will reconsider the application in accordance with the court’s analysis.
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Join the Discussion
24 comments so far.
Anon
August 6, 2021 06:38 pmCircling back I see that I missed your first of the two last comments (sometimes happens when I scroll down to the bottom, then back up)
“I got what I wanted, didn’t I?”
Um sure. I may hope that you return the favor and actually pay attention to the points that I have presented and that YOU do not hurry ahead of yourself and actually you know – ‘Do Answers.’
To my comment of “I will point out that it was I that provided historical articles on the semi-parallel of slaves and patent rights” you blandly replied:
“I didn’t see those articles. You haven’t explained the relevance of those articles. You haven’t provided a pinpoint cite to where we can find these articles and/or your comments regarding these articles.”
NONE of which changes the fact as I presented. Again, your choice of moniker is most odd as a truly Curious person would not mind doing the legwork to find the past conversations and do the reading. Instead, you seem to want to be spoonfed (and SO spoonfed as to be an impractical regurgitation of ANY prior thought expressed on a blog).
That’s NOT how blogging works. I certainly am NOT going to cater to ANY such whims of “repeat again,” or “give me a pincite.” IF indeed you are Curious, then either KEEP UP or do the legwork yourself.
In view of your STILL wanting to jump ahead and ask types of questions that simply are not all that interesting or even pertinent to the issues at point here and now, your reply of, “The answers you provided does prove that we are now debating how many angels can dance on the head of a pin.”
You absolutely miss the point. You ASSUME that “but the answer to that question has no real-world impact. If DABUS cannot assign the patent and doesn’t have capacity to sue on the patent, then the patent is essentially worthless.”
Perhaps this comes from your choice to limit your thinking (your Curiosity?) to ONLY US law.
I see your play on words with “ Thaler, as the “devisor” for the filing the patent application” but YOU move to the how many angels mode by asking why is he doing it.
HOW is why he is doing it germane to the issues as presented?
YOU insert a bit of strawman by insisting that this is somehow an issue, only to turn around and knock it down with, “It has little to do with protecting (essentially worthless) inventions, but I digress on the point as to the value of the so-called inventions themselves. This is about something other than patent law, and he is just dragging patent law into what will become a mess.”
YOU want to play the Ostrich – when the facts of the matter indicate that there are some very real implications – BOTH in the US and outside of the US to wrestle with in regards to AI inventions.
?
Now, aside from that, you do seem to want to do some actual exploring.
However, as you lay out your “simplest scenario” you already confuse a present issue that NEEDS NOT have any change in law: that of recognizing a State of Art.
To put it bluntly, there need be no change in law to make AI permissible to be an inventor to ALREADY have the impact regarding what is considered a State of the Art.
The State of the Art is ALREADY at a non-human aspect.
You seem to want to see this State of Art as requiring a change in law (even if ONLY a nothing else but making it permissible for AI to be considered an inventor).
This is simply not so.
You then move away from this and onto a side-bar: public relations of whether an AI could be an inventor.
I can see your point that there will be some that “are going to absolutely revolt at the idea as to giving any recognition (no matter how small or inconsequential) to an AI having any rights whatsoever comparable to a human.”
I do not doubt that some will absolutely behave so.
And for me – as I have already put forth: the US Sovereign grounds the basis of the patent in the Lockeian nature of HUMAN invention. This is why Stanford v. Roche came out the way that it did. I will not ‘pincite’ my past comments for you, but I have been consistent on this aspect of US Sovereign patent law forever.
The ‘carryover’ to OTHER human rights is actually just you NOT taking your time and facing one legal issue at a time – and this is exactly the type of ‘debate’ that need not come from recognizing AI as inventors.
As I have put to you from the start of your comments jumping so far ahead, the real issue that WOULD instigate that discussion would be The Singularity.
Please inform yourself as to what that means and why that is different than patent law issues related to AI as inventor.
To my answers (and YES they are answers even if you don’t like them) of: “Don’t know. Don’t care. How is this pertinent to anything? …. Per court documents, the focus was indeed independent – leastwise as to the claimed advance. Are you thinking that somehow something more differentiates a real person from an AI”
Your reply of “I didn’t expect you to answer those questions.” is merely showing YOUR not wanting to accept an answer that you do not like.
I DO “get” that you want different answers. And that you want them FROM Thaler, so that you can put your head back into the sand and avoid entirely the notion that AI is an inventor (as opposed to what to do with the fact that AI can be an inventor).
I “get” that you WANT DABUS to not be an inventor.
That is not an option. You say that you are involved with AI, and yet you show an utter ignorance of the fact that true AI is NOT merely using a programmed computer.
Until YOU get out of your own way – you are just not going to like ANY answers given to you and you will be useless for discussing critical patent law issues – here and now and moving forward.
Your assertion of “Again, I’m dealing with AI if not on a daily then certainly on a weekly basis – and I’ve been doing so for years.” is even more an indictment against you – and it is totally up to you to figure out why.
“It was refreshing.”
LOL – sure. Let’s see if you are willing to reciprocate and address the points provided instead of diving to put your head into the sand.
Lastly, you attempt to put a slight on the thought experiment – and fail miserably.
“Except you presented it as a psychological experiment that actually existed.”
Um, you do know the phrase “physchological experiment” MEANS “thought experiment” right?
“That seems awfully elaborate for a “thought” experiment. BTW”
Not at all – unless of course you are a complete simpleton, to whom even the concept of thought experiments is just too overwhelming.
“if it is nothing more than a “thought” experiment, why do you refer to it so often?”
Easy – because the lesson of that thought experiment is powerful AND applicable.
“If it cannot be shown to accurately reflect reality, then it doesn’t make for a good analogy.”
Whoever said that a thought experiment cannot accurately reflect reality? You really need to educate yourself here – I am embarrassed FOR you.
Anon
August 5, 2021 09:25 pmThank you Curious – I will accept the side wise compliment.
Curious
August 5, 2021 08:12 pmOne rather wonders, dear Curious, why you insist repeatedly to beat your head against this particular brick wall, given that you know by now what good it will do (i.e., none at all).
Because he oftentimes has a message worth sharing that gets garbled with unnecessary garbage. Perhaps I’m using this as practice for my next career as an editor for recalcitrant authors.
Curious
August 5, 2021 08:08 pmAs to the whining of Curious
I got what I wanted, didn’t I?
I will point out that it was I that provided historical articles on the semi-parallel of slaves and patent rights
I didn’t see those articles. You haven’t explained the relevance of those articles. You haven’t provided a pinpoint cite to where we can find these articles and/or your comments regarding these articles.
These types of questions of yours simply are not all that interesting or even pertinent to the issues at point here and now.
The answers you provided does prove that we are now debating how many angels can dance on the head of a pin. Interesting to some, but the answer to that question has no real-world impact. If DABUS cannot assign the patent and doesn’t have capacity to sue on the patent, then the patent is essentially worthless. This begs the question of why is Thaler, as the “devisor” for the filing the patent application, doing it? It has little to do with protecting (essentially worthless) inventions, but I digress on the point as to the value of the so-called inventions themselves. This is about something other than patent law, and he is just dragging patent law into what will become a mess.
The details of that new law would give the answer to your question
Let’s look at the simplest scenario – an AI can be an inventor – full stop, nothing else changed in the law except making it permissible. If so, then one having ordinary skill in the art has the attributes of an AI. In the case of co-inventors, it could be a human inventor in combination with an AI. I don’t see that as a good thing.
Also, as a side-bar to my question, do you think that the debate over whether an AI could be an inventor (i.e., at least have some characteristics normally attributable to a human) be good public relations for patent law or not? My take is that there are some that are going to absolutely revolt at the idea as to giving any recognition (no matter how small or inconsequential) to an AI having any rights whatsoever comparable to a human. If one just goes back to the debate over gay marriage, I can easily see somebody making the statement “well, if an AI can invent, does that mean we can allow an AI to adopt a baby as well?” A dumb comparison, but it is the type of comparison that patent law doesn’t need.
Don’t know. Don’t care. How is this pertinent to anything? …. Per court documents, the focus was indeed independent – leastwise as to the claimed advance. Are you thinking that somehow something more differentiates a real person from an AI?
I didn’t expect you to answer those questions. They are questions best asked of Thaler. To me, they are relevant because it establishes whether DABUS came up with the invention on its own accord or whether DABUS was merely programmed to search for a solution to a particular problem – e.g., it was given some parameters and it used whatever dataset it was working with to identify potential solutions. If all DABUS did was spit out some results after being asked to solve for X, Y, and Z criteria, then I don’t think what DABUS has done is inventive.
You want to be conversant IN THIS ART, then the onus is indeed on you.
Again, I’m dealing with AI if not on a daily then certainly on a weekly basis – and I’ve been doing so for years. I have little problems with the terminology – what I have a problem is trying to make heads or tails out of the points you are trying to make. That being said, I appreciate the effort you put into sharing some of your thoughts. It was refreshing.
because it was never a real study, but instead was always a thought experiment. You do know the difference, right?
Except you presented it as a psychological experiment that actually existed. You remember writing the following?
Recall the psychological experiment of simians in a cage, a stepladder and a bunch of bananas hanging from the top center of the cage. When the simians try to use the stepladder and reach up for the bananas, they are ALL firehosed. Soon, as any one simian tries to go for the bananas, the others beat down that one. Introduce a new simian and soon he too is acclimated to the “beat down” mindset. Over time, you keep on introducing new simians, and you will reach a point at which all the simians in the cage have never directly experienced a firehosing, and yet they will beat down any simian that tries to reach for the bananas.
That seems awfully elaborate for a “thought” experiment. BTW – if it is nothing more than a “thought” experiment, why do you refer to it so often? If it cannot be shown to accurately reflect reality, then it doesn’t make for a good analogy.
Anon
August 5, 2021 03:17 pmAs to the whining of Curious and his feeble, “Tried and failed” quip: Curious, your lack does not impact my efforts – they only reflect your lack. We do NOT have a doctor/patient relationship (and it SHOULD BE more like a doctor/doctor conversation, so the ‘big words’ and other concepts need not be watered down. You are a patent attorney after all, eh?
“To be honest, I still have little idea as to your positions.”
My positions are abundantly clear. You appear to want my positions ON OTHER QUESTIONS.
As I have pointed out (several times now), many such OTHER questions simply are to a different thing than the current aspects of AI as inventor.
This is exactly what I mean when I say that you want to ‘jump ahead’ and talk about thinks like The Singularity – a situation in which a nonhuman computing ‘thing’ has reached a point of self-awareness (there are plenty of sources that discuss The Singularity, as it is not a concept that I created. You can choose to inform yourself as to what that is and then figure out the difference here.
Under that other point, several of your prior questions and even a new question of yours obtains the same answer (whether or not you like that answer):
To each of:
– If DABUS is not a legal person, how can DABUS assign its property rights?
– How can DABUS execute the oath of inventorship in the US?
– Did DABUS agree to have its “invention” published or to have a patent to it applied for?
The answer is the same: These are questions pertaining more to an event like Singularity and expanded volition – which is simply not at point for the question of inventorship (or even State of the Art impacts).
I will point out (in case you missed it) that I have pointed out in detail with reasoning that AI in the US does not reach propriety for obtaining a patent. Look for words like Lockeian nature and inchoate right. My discussion of course is NOT limited to such as only US law, even as you may wish to limit yourself (your comment of, “ To the extent I refer to “patent law” I mean US patent law.”
Lacking expanded volition (and legal recognition of such), the answers are: DABUS cannot assign any property rights, seeing as property cannot own property. (I will point out that it was I that provided historical articles on the semi-parallel of slaves and patent rights).
Lacking expanded volition (and legal recognition of such), the answers are: DABUS cannot execute any oath anywhere (in a legally meaningful manner).
Lacking expanded volition (and legal recognition of such), the answers are: DABUS cannot agree to anything – including publishing and applying.
These types of questions of yours simply are not all that interesting or even pertinent to the issues at point here and now.
You have some other questions:
“Is permitting an AI to be an inventor a good thing for patent law?”
This is a good question, and regardless of any direct answer, the points of AI as a factual inventor and the impacts on State of Art have immediate effects on EXISTING patent law. The typical lawyer answer of “it depends” is likely the best answer to this question. As I have been more than clear about the US Sovereign, and you seem intent on only looking at US law, there would need be a change in US law to provide propriety for patents to AI. The details of that new law would give the answer to your question, and as this is impossible to tell at this point, you may need to ask a different question to reach a different answer.
Your question of, “Do you think it will be harder or easier for the anti-patent crowd to dismiss patents when an automaton can get a patent?” falls to that same “it depends.” I can EASILY see pushback based on the fundamentals of the Lockeian foundations. Such pushback MAY not be properly labeled as anti-patent (in the sense of those who today are anti-patent). Your question needs a bit more nuance and work if you want a different answer.
Other questions that you ask…
“How precisely did DABUS communicate that it had a new idea for food containers?
Don’t know. Don’t care. How is this pertinent to anything?
“Did DABUS independently focus its processing on the problem of food containers or was it directed to do so?”
Per court documents, the focus was indeed independent – leastwise as to the claimed advance. Are you thinking that somehow something more differentiates a real person from an AI?
“Does having a person having ordinary skill in the art include an artificial intelligence make it harder or easier to obtain a patent?”
Most likely harder – MUCH harder. I note here that THIS question is quite independent from The Singularity, AND I explained why as well. Look back for the words “non-human juristic person” and discussion of State of the Art (which is NOT a ‘real person’ driven legal determination).
“I do not expect answers to any of these questions.”
What you expect is not all that important of a driver, now is it?
You other quips are not in fact like a doctor’s fault, as concepts like the Kondratiev Fifth Wave are known in the art. You want to be conversant IN THIS ART, then the onus is indeed on you.
As to “fire-hosed moneys [sic] – there WAS NO SUCH THING as debunking ‘that study’ because it was never a real study, but instead was always a thought experiment. You do know the difference, right?
Anon
August 5, 2021 10:44 amLOL at each of you and Greg.
Dave’s little tantrum has less to do with what he says it does and more to do with the plain fact that I proved him wrong on a point of law (that Void for Vagueness applies to more than just criminal law).
I readily admit that my writing is barbed and may certainly cause some sensitive people to feel ‘hurt.’ I have been more than clear as to this following what I view as the John Maynard Keynes directive, and in my view, if you are an attorney and have such a thin skin, you are simply in the wrong profession.
Dave’s style is simply NOT conducive to the faster, looser, and yes, less respectful manner of give and take on a blog. His style works excellently in a court room — but it is simply a MASSIVE mistake to think that exchanges on blogs need be (or even should be) the same as court room exchanges.
Now, please stop the whining.
Greg DeLassus
August 5, 2021 10:26 amDavid Boundy’s is the correct approach. One rather wonders, dear Curious, why you insist repeatedly to beat your head against this particular brick wall, given that you know by now what good it will do (i.e., none at all).
Curious
August 5, 2021 10:09 amJust because you do not like an answer does not mean that you were not answered.
Classic Anon — when asked direct questions he defers to his past non-answers. You’ll respond to this post by again not addressing any of the “actual points at hand” will pretending to do so and arguing that I failed to appreciate the points you previously made.
BTW — anytime someone fails to appreciate one of your points, that is a YOU problem, not a THEM problem. If YOU make a point, I assume YOU want it understood (as opposed to making a point merely to stroke your own ego). If someone fails to understand YOUR point, then that’s YOUR failure to be understood.
I’ve had a similar conversation with a doctor before after hearing that my anterior, dorsal, proximal body part had some issue. While I understand some of those terms, I can imagine that most people don’t. As such, the doctor is essentially talking a foreign language to their patient. If the patient doesn’t understand what the doctor is referring to, that’s on the doctor. But I digress.
You don’t think I know how you operate? I’ve seen you perform this dance a hundred times before. Let me guess … you’ll point to some past comments about the Kondratiev Fifth Wave that you believe were illuminative — what those points were, nobody knows because you failed to repeat them — and we will be left scratching our heads. Maybe you’ll refer to fire-hosed moneys (BTW — that supposed study was debunked).
I always recall this comment by David Boundy on this blog dated December 13, 2018 that was directed to you:
Anon @49 @41 and @35 —
I haven’t responded to you because I have told you that I don’t engage with you. You don’t think clearly and don’t write clearly, and there’s no point.
It is unfortunate that you didn’t take that criticism to heart. I doubt he made that criticism lightly. Again, he is hardly the only one to make similar criticisms.
Anon
August 4, 2021 09:45 pmCurious,
Just because you do not like an answer does not mean that you were not answered.
To wit (and yes, this is “cut and paste” from the other thread):
“I also suggest that you approach THIS discussion one step at a time. You seem to want to jump ahead of yourself and not grasp the actual points at hand.”
But go ahead and whine some more. That will show…, well something other than what you probably think that it shows.
Curious
August 4, 2021 05:36 pmI have attempted a higher dialogue on the critical principles
Tried and failed. To be honest, I still have little idea as to your positions. As is typical, you are fond of talking in riddles. I asked a bunch of questions — many of which did not get answers. Let me repeat some of them. To the extent I refer to “patent law” I mean US patent law.
Is permitting an AI to be an inventor a good thing for patent law?
If DABUS is not a legal person, how can DABUS assign its property rights?
How can DABUS execute the oath of inventorship in the US?
Do you think it will be harder or easier for the anti-patent crowd to dismiss patents when an automaton can get a patent?
While these are not questions I explicitly asked, these are some additional questions that I want answered.
How precisely did DABUS communicate that it had a new idea for food containers?
Did DABUS independently focus its processing on the problem of food containers or was it directed to do so?
Did DABUS agree to have its “invention” published or to have a patent to it applied for?
Does having a person having ordinary skill in the art include an artificial intelligence make it harder or easier to obtain a patent?
There are others, but I’m a little pressed for time. However, I do not expect answers to any of these questions. Some people just don’t do answers.
MaxDrei
August 4, 2021 04:49 pmAnon, that a court makes an assumption (that an AI is correctly named as “inventor”) is, to my mind, not the same as the court “accepting” that the AI is correctly named as the inventor. Or do you continue to assert otherwise?
Why did the court made the assumption (that the AI is the inventor) in favour of the petitioner? Because it enabled to court to proceed with more despatch to a compact decision, against the petitioner, while avoiding any complaint of prejudice or unfairness towards the petitioner.
The Australian Judge Beach nails it, when reminding us to distinguish carefully between inventorship and ownership. See for example EPC, Article 60. The patent belongs to “the inventor” or their “successor in title”. But the patent is deemed to belong to the Applicant at the EPO, and that presumption is displaceable only by a legal person with a better claim on ownership. In the case of an AI inventor and a patent application filed by its handler/owner, who is that legal person with a better claim on ownership?
One more thing: it seems to me that it is easier to accept an AI as the notional PHOSITA (in order to adjudicate enablement, sufficiency of description or even obviousness) than as the owner of a patent or patent application.
Anon
August 4, 2021 10:21 amGood counter Mr. Summerfield.
I concur – not a HOLDING that DABUS is a devisor, but importantly, the Court is accepting that DABUS is a devisor.
One reason why I mention that is that the term “devisor” DOES entertain a non-human actor — much like the Australian judge enunciates.
Also a good point – and a thank you for highlighting the particular path through South Africa (on an ‘inventor as formality’ path — which is exactly the point that I had made earlier). That ‘check’ being bypassed is an interesting reflection on how a Sovereign may choose differently as to what degree ‘inventor’ is a formality.
Some here have jumped to conclusions on my position vis a vis US Sovereign outlook on that very point. Not sure why, as since Day One of this topic I have been amply clear that the US Sovereign DOES require a real person as inventor (and even postulated why – given that our Sovereign based our patent system on a Lockeian view of the inchoate right of a real person inventor and turning that inchoate right into a full bundle of legal property rights.
I DO push this topic though for multiple reasons – notwithstanding the US Sovereign view.
Some would rather stick their collective heads into the sand and pretend that there are NO ramifications of the reality of non-human inventors.
This runs smack into the problem that the laws of obviousness — geared to a NON-Human reality of “state of the art” employs a non-human juristic legal ‘person.’ The fact (and unavoidable reality) that the state of the art IS affected by non-human invention MUST be dealt with.
Another area that is NOT directly implicated by the DABUS saga, but indeed is upon us is JOINT Inventorship in cases in which AI may be said to be a joint inventor.
It is to be determined (and cannot be determined, even if it must if people take the ostrich approach) just how to treat an invention if one of the inventors is a non-human. Is the entire invention tainted by this presence? Does the Lockeian ‘contract’ still exist if a critical “member of the team” is de facto excluded?
I have in the past (for historical contrast) provided articles on how the US Sovereign treated slave inventions (in times that in substantial manners reflected other aspects of AI invention). Of course, these are not – and cannot – provide exact analogies, but at least I have attempted a higher dialogue on the critical principles (Curious’s incessant whining notwithstanding).
Mark Summerfield
August 4, 2021 06:37 am…the UK did recognize the AI named DABUS as a devisor
Well, that’s just not true. What the UK High Court actually said was this:
As for the PCT, there is nothing in the international application process that requires a valid inventor. Indeed, what counts as a valid inventor (and, more conventionally, the nature of the contribution required to qualify for inventorship) may vary among member states, so it would be impractical to interrogate this during the international phase.
This is how the South African patent has come to be granted. Had the application been filed directly in South Africa, it would have been subject to a formalities examination that includes checking the legitimacy of the named inventor. But when a application is filed in South Africa as the national phase of a PCT application this check is bypassed.
So the South African grant in fact tells us nothing about that country’s legal position on whether a non-human can be an inventor. That will only be tested of the patent is ever challenged in court.
Anon
August 3, 2021 08:57 pm(I did forget to add that the UK did recognize the AI named DABUS as a devisor)
Anon
August 3, 2021 05:06 pmAnon-noyed,
MaxDrei can confirm (as he and I have discussed this previously), the PCT regs as to applicant and inventor are not directly on point as to the nature of inventor (per se), and so far, England and the EPO have noted that inventor must be a human inventor (while of course, applicant need not be human, given that non-human juristic persons being corporations may be applicants).
Anon-noyed
August 3, 2021 03:51 pmDoes the PCT treaty require a human inventor or just an applicant that is a legal person?
Anon
August 3, 2021 02:39 pmMarco,
You may enjoy this rebuttal to Greg.
It is NOT any such “cite as the clearest text in the constitution” that informs the US understanding of patent law, as it is the understanding BEHIND the patent clause of the Lockeian philosophy of inchoate right (of an inventor) and the turning of that right into a full bundle of property rights.
As was discussed in the Supreme Court case of Stanford v. Roche (which was NOT affected by the America Invents Act), the nature of the patent right — for the US Sovereign IS TIED to a first human originator BASED on the Lockeian views.
Now this being the LEGAL framework does not change the FACTUAL nature that non-humans may now create inventions.
Such creations DO technically mean that we have non-human inventors. However, the US Sovereign HAS BEEN determined that the turning of inchoate rights into that full bundle of property rights IS limited to HUMAN inventors (as the originator — vis a vis the refusal to allow NON-Human juristic persons to have that ‘right.’)
You see Marco, having BOTH the basics and the “intellectual stratosphere” NEED NOT lead to your worst case fears.
Pat
August 3, 2021 02:12 pmWe are all electrochemical machines, so what’s the issue?
Greg DeLassus
August 3, 2021 12:03 pmNo way, no how, can a “machine” EVER be considered an “inventor” or “author” under our constitution.
Obviously the Australian precedent that is the subject of the article above was not decided under our (i.e., the U.S.) constitution. It is not clear to me, however, that there are any constitutional obstacles to acknowledging an AI machine as an inventor, although there are presently statutory obstacles.
What would you cite as the clearest text in the constitution that should be read to prohibit acknowledging an AI machine as an inventor?
Anon
August 3, 2021 11:07 amMarco,
Your dismissive attitude just does not help.
Note that I DO understand both the basics AND the “intellectual stratosphere,” and — like it or not — you must not lose track of actual reality in your efforts to “keep things simple.”
As Einstein stated (with emphasis added):
Everything should be made as simple as possible, but no simpler.
You do more harm than good by violating this axiom.
(And you need not worry about me being shouted down – 😉 )
Marco
August 3, 2021 10:56 amNice try Anon.
We have a problem in this country in our efforts to engage the grass roots, good people of America in meaningful debate about “patent law” issues. Most folks tune out as soon as they hear those two words, because debate always quickly ascends to an intellectual stratosphere beyond their comprehension, where media-manipulating power brokers gradually shout down any opposition.
But “inventor” and “author” are words in the Constitution, which was deliberately written so it could be understood and interpreted by ordinary citizens.
We will lose our dominance in IP law if we keep trying to pull patent matters out of the mainstream where the wisdom of common folk can be brought to bear on the same. Federal judges and juries MUST be brought back into deciding all aspects of patent disputes.
The PTAB needs to go. This type of approach, no matter how well-intended, is inducing a dangerous and ultimately destructive drift toward a slippery slope where the constant and intended influx of the wisdom and common sense of our grear and wise average American is eventually lost.
Giving serious consideration to such a nonsensical proposal as a machine being an inventor or author shows our sad and disconcerting movement toward an Orwellian state.
Speak up LOUDLY against this affront to the dignity of our Constitution!!
Daniel Alecu
August 3, 2021 09:38 amDABUS output is a process external to human conscientiousness therefore the observation by a human subject is a serendipitous discovery. Along those lines, the PCR test is the invention of the fumaroles bacterium, i.e. the enzyme that synthetizes the DNA from amino-acids close to the temperature of the double chain unzipping. It follows any scientific discovery becomes automatically an invention and the owner may be anyone who files after reading the scientific paper. This may have dire consequences onto the scientific process, i.e. the relatively free propagation of discovery. There is a long way a serendipitous observation has to walk until it becomes anything useful.
Anon
August 3, 2021 09:29 amMarco,
While I certainly agree that under the US Sovereign controlling law that a patent can only be awarded to an invention that has its start (the inchoate Lockeian right) with a real person, you are clearly letting your emotions get the better of you because like it or not, we ARE at a point at which machines are the inventors.
It really helps no one to want to play ostrich and stick your head into the sand.
There are simply too many ramifications from the factual state of reality that AI induces — and this is NOT limited to any (US and non-US) originating point, ability to provide an oath, or ownership issue. This also (and directly) impacts the non-human, state of the art, juristic person meaning of Person Having Ordinary Skill In The Art.
Ostriches and emotional naysayers need get out of the way.
Marco
August 3, 2021 08:58 amThis is another rather insane tangential excursion down a rabbit hole, with a highly superficial appeal to people who do not understand the most rudimentary aspects of our patent law! Hopefully someone with good old fashioned common sense, a knowledge of patent law basics, and the ability to forcefully articulate rational argument will come forward to stop this–to “NIP IT IN THE BUD,” as it were.
Like the ridiculous nonsense going on with Section 101, this kind of thing threatens to undermine one of the pillars of our patent law. No way, no how, can a “machine” EVER be considered an “inventor” or “author” under our constitution.
We should hold this truth to be “self-evident”!