Article: Can An AI Be Considered An Inventor?

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Can an artificially intelligent system obtain a patent for something it invented? What may have seemed like a ridiculous question ten years ago has come before patent offices around the world. In a patent application for a beverage container with a unique fractal surface, the artificial intelligence system called DABUS, not a human, is named as the inventor. (ip.australia.gov.au) A fractal refers to a geometric pattern that looks the same no matter how close you look. For example, the pattern of bays, beaches, and peninsulas on the coastline of a continent looks the same from space as it does from five miles up or fifty feet up. According to the patent application, the fractal pattern improves grip and facilitates heat transfer to and from the container for faster cooling or heating of beverages.

DABUS stands for Device for the Autonomous Bootstrapping of Unified Sentience. Invented by Stephen Thaler, the President and CEO of Imagination Engines, Inc, DABUS makes new inventions and artforms by combining concepts from many computers and filtering the ideas for novelty. Combining different concepts into new ones tries to model the creative process of human imagination. Additionally, Thaler added a reward and punishment mechanism for DABUS for particularly interesting inventions. A reward and punishment mechanism mimics the human brain’s reward and punishment systems that drive a sense of success and accomplishment for inventing something new or a punishment for something that does not work.

Thaler filed patent applications on behalf of DABUS in several countries worldwide, including the United States, United Kingdom, Australia, Germany, and South Africa. Thaler named DABUS as the inventor in these patent applications, but apart from South Africa, all of the countries have rejected the assignment of an artificial intelligence system as having the status of the inventor. In the UK, the Patent Office rejected the patent application because it did not meet the requirements of the Patents Act 1977, namely that the inventor being an artificially intelligent entity cannot count as the inventor of the device. (bailii.org) In an appeal to the High Court of Justice, Thaler argued that a machine deserves inventorship. Still, the Honorable Justice Marcus Smith hearing the case on July 15, 2020, rejected the claim on the grounds that only a human can claim inventorship. However, Justice Marcus Smith did add that argument that the owner or controller of the artificially intelligent machine could claim inventorship has merit but does not get addressed explicitly in the current case.

According to the European Patent Office, “Accordingly, for the time being, it seems that inventions are made by individuals (e.g. software developers or engineers), who set up an AI system, who trained the machine with data, who interpreted the output of an ML algorithm, who improved the ML algorithm to obtain a certain technical effect or who identified the technical application of the output of an AI system (or a combination thereof).” (EPI) The US PTO also rejected DABUS as an inventor, and the District Court of Eastern Virginia rejected Thaler’s appeal because “In affirming the USPTO’s denial of the applications, the court held that based on the plain statutory language of the US Patent Act and Federal Circuit authority, the AI machine cannot be an inventor because an inventor must be an “individual,” which under common interpretation and court precedent means a natural person” (lexology.com)

The invention of a new fractal surface for a beverage container may not be earth-shatteringly innovative. Still, the notion that an artificial intelligence system deserves inventor status on a patent application is revolutionary. Steven Thaler, the President and CEO of Imagination Engines, Inc and inventor of DABUS, has attempted to gain acceptance from the patent and trademark offices worldwide that an AI system deserves inventorship on patents. Apart from South Africa, patent offices have rejected inventorship for the machine called DABUS. (nixonpeabody.com) Most rejections stem from the notion that only an individual or individuals can claim inventorship. Interestingly, none of the arguments tackled the question of determining if a system such as DABUS rises to the level of an intelligent individual. As AI systems become more advanced, the question of inventorship will rise again, and the courts will need to face the question of whether a machine and its inventions have the protection of the legal system.

Dr. Smith’s career in scientific and information research spans the areas of bioinformatics, artificial intelligence, toxicology, and chemistry. He has published a number of peer-reviewed scientific papers. He has worked over the past seventeen years developing advanced analytics, machine learning, and knowledge management tools to enable research and support high-level decision making. Tim completed his Ph.D. in Toxicology at Cornell University and a Bachelor of Science in chemistry from the University of Washington.

You can buy his book on Amazon in paperback and in kindle format here.