Researchers from the University of Surrey and the inventor of Dabus AI, an artificial intelligence algorithm, have stoked discussion around whether a machine can be recognized as an inventor for the purpose of securing patent protection. The group, as part of The Artificial Inventor Project, recently filed two patent applications with the US, UK, and European patent offices on behalf of Dabus AI, arguing that the algorithm should be credited with inventorship because it was not trained to perform specific tasks and independently invented in areas beyond the background of its programmer.
The patent applications describe food containers handled by robotic arms and a warning light that flickers in a manner that is difficult for a person to ignore, respectively.
A European Patent Office spokesperson commenting on the Dabus AI patent applications stated that “it is a global consensus that an inventor can only be a person who makes a contribution to the invention’s conception”. Indeed, in the U.S., the Constitution states that patents are to be granted to inventors, and an inventor is a person who contributes to at least one claim of a patent application. UK patent law similarly requires human inventorship for patent protection. In Canada, although the term inventor is not defined in the Patent Act, the Supreme Court of Canada has interpreted the term as “the person or persons who conceived of” the invention1 by contributing to the inventive concept of at least one claim of the patent application.
Requiring human inventorship precludes AI from being recognized as an inventor and any legal rights flowing to the programmer or owner of the AI algorithm. As a result, inventions created by machines are effectively not patentable if AI is not recognized as an inventor.
The researchers point out this issue extends to other fields of intellectual property such as copyright protection for works authored by AI. However, they also acknowledge that it is a complex issue that will likely require many years for lawmakers to appropriately address.
1Apotex Inc. v. Wellcome Foundation Ltd. 2002 SCC 77 at para 96