Patentability of Artificial Intelligence
MEANING OF ARTIFICIAL INTELLIGENCE
The branch of computer science capable of simulating human intellect is known as Artificial Intelligence.[1] In short, it is referred to as “AI.” It is applied in machines to execute tasks that need human intelligence.[2] The principal functions of AI are quick decision-making, reasoning, problem-solving, learning, etc.[3]
In reality, Artificial Intelligence is algorithms with definite sets of rules.[4] Artificial Intelligence systems possess the skill to learn from the repetition of tasks where the computer data (also known as machine learning algorithms) are furnished to the system.[5] In this way, it can improve machine learning truly for performing the specified tasks without external intrusion.[6]
Patent grant to DABUS by South Africa
Recently, a patent concerning a “food container based on fractal geometry” had been granted to an artificial intelligence (AI) system called DABUS. The invention comprises interlinking of food containers which are easy for robots to stack and grasp.[7] The South African Patent Journal published this patent with prominent news agencies including The Times in July 2021.[8] In South Africa, Patent is valid for 20 years providing that the same is being renewed annually before the termination of the third year from the date of filing in South Africa.[9]
South Africa’s Companies and Intellectual Property Commission gave its acceptance to the patent on June 24, 2021.[10] The patent identifies DABUS as the inventor, and the machine’s proprietor is the owner of the said patent.[11] It is significant to note that the patent application for registering DABUS as the inventor was submitted in patent offices of distinct countries such as Europe, Australia, South Africa, and the United States.[12] The United States, United Kingdom, and European Union patent offices rejected the patent because their laws do not recognize an artificial inventor as a subject of a patent.[13] A few days later, Australia followed South Africa’s path, and subsequently, a judgment of the Hon’ble Court gave the permission.[14] Immediately afterward, the acceptance from South Africa, a Federal Court in Australia on July 30, 2021, ruled that an artificial intelligence system is proficient in being an “inventor” under the Australian patent law.[15] South Africa’s and Australia’s acknowledgment of artificial intelligence as an inventor shall have vast implications for patent laws in their native countries and at the international level.
Main Issue
The main issue was that the patent had been granted to an artificial intelligence (AI) system known as DABUS, not to any human being.[16]
What does DABUS stand for?
DABUS symbolizes Device for the Autonomous Bootstrapping of Unified Sentience. It is an artificial intelligence tool introduced by Dr. Stephen Thaler, CEO of Imagination Engines, in the United States (US).[17] Thaler, the inventor of DABUS, had a conversation with the American Intellectual Property Law Association (AIPLA) discussing the functions and workings of DABUS. This conversation is succeeded by a panel discussion concerning the legal implications of Artificial Intelligence-generated inventions.[18] DABUS simulates human creativity, imagination thereby formulating new inventions.[19] It is frequently represented as “creativity machines” as they can function independently and complexly[20], which is distinct from ordinary AI such as Siri, the “voice” of Apple‘s iPhones.[21]
Retaliation of South Africa’s decision
The decision of South Africa to grant the patent to DABUS recorded extensive counterattack from the experts of intellectual property based on the following grounds:
- The experts argued that artificial intelligence lacks essential legal capabilities to be eligible as an investor.[22] Therefore, the decision to grant the patent is unlawful and incorrect.[23]
- This acceptance was an error on commission, which has been a less reliable commission since the past.[24]
- The patent grant lacked a proper and formal examination step in the process.[25]
Stephen Thaler filed a suit against the United States Patent and Trademark Office for not recognizing DABUS as the inventor of two devices in their patents.[26] Leonie Brinkema, District Judge of the United States, adjudicated that the artificial intelligence machine cannot be regarded as an inventor on a patent.[27], which is the first milestone decision in the Unites States.
The European Patent Office also rejected the patent because they do not fulfil the obligation of the EPC that an inventor designated in the application has to be a human being, not the machine.[28] Specific guidelines exist in Europe for deciding whether artificial intelligence can be patented. European Patent Office has published guidelines for examination.[29] These guidelines suggest the manner of carrying out the patenting process and demonstrate the technique of handling patent applications concerned with artificial intelligence inventions.[30] Further, they also remark that software and abstract mathematical models are not patentable, but if the idea is implementable, the same becomes eligible for patenting.[31]
Global Outlook regarding artificial intelligence as an Invention
Several countries throughout the world have optimistic perspectives regarding artificial intelligence as an invention. Thirty-six member countries of OECD along with other countries comprising Peru, Ukraine, Brazil, Malta, Costa Rica, Argentina, and Romania, have already approved the OECD Principles on Artificial Intelligence.[32] Countries like Canada, Italy, France, United States, New Zealand, etc., are investing enormous funds for preparing strategic plans for the development of artificial intelligence.[34] China has established itself as a leader of artificial intelligence inventions.[33]
India’s booming AI field
The scope of development of artificial intelligence inventions in India is vast. National Strategy for Artificial Intelligence is a discussion paper that NITI Aayog released in 2018[34], which provides a nationwide Artificial Strategy that would adapt to India’s only requirements and objectives. Further, the NITI Aayog propounded a strategy to advance an institutional framework.[35] To meet the funding requirements, a cabinet note to afford Rs 7,500 crore in funding was circulated primarily over three years to form a cloud computing platform called AIRAWAT, research institutions and establish an advanced team to implement Artificial Intelligence in India. Few sectors have been included in the strategy, such as education, infrastructure, smart cities, intelligent transportation, and mobility.[36] The Indian government focuses on developing artificial intelligence application to promote the social benefits in health, education, agriculture, and other essential sectors.
Two major domains that the Prime Minister has actively focused on are the space technology and artificial intelligence. In 2020, he made a historic decision to open up the space sector to enable participation of the private sector and shift from a supply-based model to a demand-based model. Indian National Space Promotion and Authorization Centre (IN-SPACe) has been created to provide a legal playing field for companies and start-ups. In October 2020, the Prime Minister presided over the Responsible Artificial Intelligence for Social Empowerment (RAISE) Summit and discussed the role of AI in the overall development of India. His efforts to push India forward on path of digital excellence recognize the significance of making India an AI hub of the world.
The National Programme on AI is dedicated to ensuring the appropriate use of AI to solve multiple developmental challenges faced by society across areas like agriculture, healthcare, urbanization, disaster management, and climate change.
CONCLUSION
From the above discussion, we could conclude that artificial intelligence system is becoming more and more popular nowadays. The decision of South Africa to grant the patent to DABUS, an artificial intelligence, is a turning point in giving patents to artificial intelligence machines. Australia has acknowledged this decision. Although, the majority of countries had denied its approval. But there is a possibility in the upcoming future of getting recognition from the remaining countries.
References: [1] For details, see What is Artificial Intelligence? Types of AI and Examples - Tech4Fresher , available at https://tech4fresher.com/what-is-artificial-intelligence-ai/ (accessed on 07, September, 2021). [2] Ibid. [3] Ibid. [4] Ibid. [5] Ibid. [6] Ibid. [7] For details, see In a world-first, South Africa grants patent to an artificial intelligence system (iasscore.in), available at https://iasscore.in/current-affairs/mains/in-a-world-first-south-africa-grants-patent-to-an-artificial-intelligence-system (accessed on 08, September, 2021). [8] For details, see In a world first, South Africa grants patent to an artificial intelligence system (theconversation.com) , available at https://theconversation.com/in-a-world-first-south-africa-grants-patent-to-an-artificial-intelligence-system-165623 (accessed on 08, September, 2021). [9] For details, see Patent Search in South Africa - Smit & Van Wyk (svw.co.za), available at https://www.svw.co.za/patents/patent-search/ (accessed on 08, September, 2021). [10] For details, see DABUS: The first AI Inventor - LexCampus, available at https://www.lexcampus.in/dabus-the-first-ai-inventor/ (accessed on 08, September, 2021). [11] Ibid. [12] For details, see In a world-first, South Africa grants patent to an artificial intelligence system (iasscore.in), available at https://iasscore.in/current-affairs/mains/in-a-world-first-south-africa-grants-patent-to-an-artificial-intelligence-system (accessed on 08, September, 2021). [13] For details, see DABUS: The first AI Inventor - LexCampus, available at https://www.lexcampus.in/dabus-the-first-ai-inventor/ (accessed on 08, September, 2021). [14] For details, see Meet DABUS: The world's first AI system to be awarded a patent, Marketing & Advertising News, ET BrandEquity (indiatimes.com), available at https://brandequity.economictimes.indiatimes.com/news/digital/meet-dabus-the-worlds-first-ai-system-to-be-awarded-a-patent/85149000 (accessed on 08, September, 2021). [15] For details, see DABUS: The first AI Inventor - LexCampus, available at https://www.lexcampus.in/dabus-the-first-ai- inventor/ (accessed on 08, September, 2021). [16] For details, see South Africa grants patent to an artificial intelligence system: - INSIGHTSIAS (insightsonindia.com), available at https://www.insightsonindia.com/2021/08/11/south-africa-grants-patent-to-an-artificial-intelligence-system/ (accessed on 08, September, 2021). [17] For details, see DABUS: The first AI Inventor - LexCampus, available at https://www.lexcampus.in/dabus-the-first-ai-inventor/ (accessed on 08, September, 2021). [18] For details, see Dr. Stephen Thaler speaks on how DABUS can invent – The Artificial Inventor Project, available at https://artificialinventor.com/467-2/ (accessed on 08, September, 2021). [19] For details, see Meet DABUS: The world's first AI system to be awarded a patent, Marketing & Advertising News, ET BrandEquity (indiatimes.com), available at https://brandequity.economictimes.indiatimes.com/news/digital/meet-dabus-the-worlds-first-ai-system-to-be-awarded-a-patent/85149000 (accessed on 08, September, 2021). [20] Ibid. [21] Ibid. [22] For details, see In a world-first, South Africa grants patent to an artificial intelligence system (iasscore.in), available at https://iasscore.in/current-affairs/mains/in-a-world-first-south-africa-grants-patent-to-an-artificial-intelligence-system (accessed on 08, September, 2021). [23] Ibid. [24] Ibid. [25] Ibid. [26] For details, see US Judge Rules DABUS, An AI Machine, Can't Be An Inventor - DailyAlts -, available at https://dailyalts.com/us-judge-rules-dabus-an-ai-machine-cannot-be-an-inventor-on-a-patent/ (accessed on 08, September, 2021). [27] For details, see AI Machines Can't Not Be Granted Patents on Inventions: Judge - Bloomberg, available at https://www.bloomberg.com/news/articles/2021-09-03/only-humans-not-ai-machines-can-get-a-u-s-patent-judge-rules (accessed on 09, September, 2021). [28] For details, see European Patent Office Rejects World’s First AI Inventor (forbes.com), available at https://www.forbes.com/sites/emmawoollacott/2020/01/03/european-patent-office-rejects-worlds-first-ai-inventor/?sh=395efadd5cd0 (accessed on 09, September, 2021). [29] For details, see Can Artificial Intelligence Machines Be Patented Or Sued? - Technology - United Arab Emirates (mondaq.com), available at https://www.mondaq.com/new-technology/821646/can-artificial-intelligence-machines-be-patented-or-sued#:~:text=For%20the%20work%20of%20an%20artificial%20intelligence%20system,Office%20%28EPO%29%20has%20published%20its%20guidelines%20for%20examination (accessed on 09, September, 2021). [30] Ibid. [31] Ibid. [32] For details, see Forty-two countries adopt new OECD Principles on Artificial Intelligence - OECD, available at https://www.oecd.org/science/forty-two-countries-adopt-new-oecd-principles-on-artificial-intelligence.htm (accessed on 10, September, 2021). [33] For details, see AI, Machine Learning & Big Data Laws and Regulations | China | GLI (globallegalinsights.com), available at https://www.globallegalinsights.com/practice-areas/ai-machine-learning-and-big-data-laws-and-regulations/china (accessed on 10, September, 2021). [34] For details, see Artificial Intelligence and India: A Comprehensive Overview | (analyticsinsight.net), available at https://www.analyticsinsight.net/artificial-intelligence-india-comprehensive-overview/ (accessed on 10, September, 2021). [35] Ibid. [36] Ibid.
Authored by: Nikita Dobhal, LLM, Uttarakhand Technical University, Dehradun
Disclaimer: This article is intended to provide general guidance to the subject matter. For any specific advice/corrections, write to [email protected]
