Sun Aug 01 2021
Australian IP lawyer says the decision will lead to robotic patent trolls
An Australian court has recently ruled that an Artificial Intelligence should be able to be legally recognised as an inventor in a patent submission.
The case was bought by an individual named Stephen Thaler, who’s filed similar cases all over the globe on behalf of DABUS – A Device for the Autonomous Boot-Strapping of Unified Sentience (stay with us… we’re not making this up!)
Australia’s Federal Court heard the case last month and ruled that the Australian Commissioner of Patents was wrong when they decided an AI couldn’t be considered an inventor or a legal entity for the purposes of filing and holding patents.
The conclusion was reached by Justice Beach after deciding there wasn’t anything in Australian law saying an AI couldn’t be a patent holder or indeed, that the applicant had to be human.
… in my view an artificial intelligence system can be an inventor for the purposes of the Act. First, an inventor is an agent noun; an agent can be a person or thing that invents. Second, so to hold reflects the reality in terms of many otherwise patentable inventions where it cannot sensibly be said that a human is the inventor. Third, nothing in the Act dictates the contrary conclusion.
On the Commissioner's logic, if you had a patentable invention but no human inventor, you could not apply for a patent and nothing in the Act justifies such a result.
Due to that, Justice Beach has sent Thaler’s application back to the Commissioner of Patents requesting they re-consider the reasons for their rejection.
The request to have an AI (in this case DABUS) recognised as an owner of a patent has been filed around the globe by Stephen Thaler but until last month the only other country to recognise a patent was South Africa.
The UK, USA and the EU though have all rejected such claims, with the US going so far as to rule a patent owner must be human.
Commenting on the judgement, Mark Summerfield, a leading Australian IP lawyer has strongly criticised the judgment, stating it could lead to a slew of ‘junk patents’ created by AI bots.
Just because patents are (or, at least, can be) good, it does not follow that more patents, generated in more ways, by more entities, must be better. I do not consider the decision … to serve Australia’s interests. I think that it represents a form of judicial activism that results in the development of policy – in this case, the important matter of who, or what, can form the basis for the grant of a patent monopoly enforceable against the public at large – from the bench.
It may be perfectly reasonable to exclude those inventions that have not been devised by a human inventor. It all depends upon what types of activity you wish to incentivise through the patent system. If you want to promote the advancement of human ingenuity, while offering lesser (or no) rewards for automated innovation, then it is perfectly sound policy to deny patents on machine-made inventions.
He finished up by saying that he hoped the Australian Patent office wins its appeal against the judgement as Justice Beach’s decision is “neither as clever nor as progressive as the judge appears to believe."
Sun Aug 01 2021