Backlash grows against decision to grant patent to AI system
South Africa granting a patent to an artificial intelligence system is a world first
Creativity machines
Creativity machines can process and critically analyze data, learning from it. This process is known as machine learning. Once the machine learning phase has occurred, the machine is able to “autonomously” create without human intervention. As has been seen in theCOVID pandemic, as just one example, AI is able to solve problemshumans were unable to– and alsomuch fasterthan people can.
Over the years there have been many kinds of creativity machines. Prior to DABUS, Thaler built another AI which creatednovel sheet music, and which he credited with inventing thecross-bristle toothbrush design. He filed a patent for the cross-bristle design, and it was granted – proving AI’s ability to generate truly novel inventions that meet the standards for patents. However, Thaler listed himself, rather than the AI, as the inventor at that time.
When it came to the food container invention by DABUS, Thaler, assisted by Ryan Abbott of the University of Surrey, decided instead to list DABUS as the rightful inventor, as the invention was entirely devised by the AI. This was the start of their push for AI to be recognized as inventors the world over.
TheUnited States Patent and Trademark Officeand theEuropean Patent Officerejected these applications in the formal examination phase. They gave three reasons. First, their respective patent laws only provide for human inventors – not AI – as indicated by the use of pronouns such as “him” and “her” in their text. Second, ideas, for the purposes of patents, require the element of “mental conception” – something of which only a human mind is capable. Finally, inventorship comes with rights, which AI is not legally capable of possessing.
Much to thesurprise of the global community, South Africa’s patent office, theCompanies and Intellectual Property Commissiongranted the patent, recognizing DABUS as an inventor. It has not yet explained its reasons for doing so.
This patent waspublishedin July 2021 in the South African Patent Journal, with major news agencies includingThe Times reporting on the matter.
The granting of the DABUS patent in South Africa has received widespread backlash from intellectual property experts. The critics argued that it was the incorrect decision in law, as AI lacks the necessary legal standing to qualify as an inventor.Many have arguedthat the grant was simply an oversight on the part of the commission, which has been known in thepast to be less than reliable. Many also saw this as an indictment of South Africa’s patent procedures, which currently only consist of a formal examination step. This requires a check box sort of evaluation: ensuring that all the relevant forms have been submitted and are duly completed.
Critics feel that if South Africa instead had a substantive search and examination system in place, the DABUS patent application would have been rejected.
I disagree.
Enabling policy environment
While it is possible that the commission erred in granting the patent, South Africa’s policy environment in recent years suggests otherwise.
The first relevant policy was theIntellectual Property Policy of the Republic of South Africa Phase I of 2018. It marked the beginning of patent reform in the country. Since then, from 2019 to 2021, three other notable instruments have been published: theDepartment of Science and Technology’s White Paper on Science, Technology, and Innovation;the Presidential Commission on the Fourth Industrial Revolution; and the proposedNational Data and Cloud Policy in terms of the Electronic Communications Act 36 of 2005.
The core message of all these documents is that South Africa’s government wants to increase innovation to solve the country’s socio-economic issues. There is clear worry about issues such as poor innovation levels, lack of funding, and lack of suitable infrastructure which is necessary to really capitalize on the fourth industrial revolution.
Given the policy environment and the vast potential of AI, the granting of the patent makes sense. Perhaps this will turn out to be a strategic masterclass by the South African office which will lead to a much more innovative nation.
Article byMeshandren Naidoo, PhD Fellow and LexisNexis Legal Content Researcher and Editor,University of KwaZulu-Natal
This article is republished fromThe Conversationunder a Creative Commons license. Read theoriginal article.
Story byThe Conversation
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