THE DABUS SAGA: GLOBAL FIGHT FOR AI TO BE RECOGNISED AS AN INVENTOR
The emergence of artificial intelligence (‘AI’) has taken the world by storm. This technological advancement has seamlessly permeated many industries, where they are reaping the benefits of automation, improvement of processes and workflow, accelerated data analysis, and even the creation of inventions. Not surprisingly, intellectual property legal issues surrounding creations from AI machines have come under scrutiny in judicial courts globally. Countries from Australia to Europe, Israel to South Africa, South Korea to the UK were all forced to grapple with patent applications that named the AI machine, DABUS, as the inventor. AI pioneer and inventor of DABUS, Stephen Thaler, pursued a worldwide campaign to have AI machines recognised as inventors. Dr. Thaler filed numerous patent applications in various jurisdictions, including Australia, New Zealand, the US, Europe, the UK, Taiwan, India, Korea and Israel, to name a few.
Courts around the world, one-by-one handed down their decisions, with the High Court of New Zealand and the UK Supreme Court following suit ruling only natural persons can be inventors.
So, which countries protect AI-generated inventions and which ones do not?
Making history: AI machine can be an inventor in South Africa
On 28 July 2021, the South African Companies and Intellectual Property Commission formally published in the South African Patent Journal the acceptance of the DABUS patent application. This signified the making of history as the first and only current country to recognise AI as an inventor rather than a natural person.
It is important to recognise that South Africa has a depository system for patent registrations and applications are examined based on formalities rather than substantively. This decision is yet to be challenged.
Australia’s switch-up: YES to NO!
Australia made history as the first court judgement that deemed AI machines as an inventor in a patent application.
Initially, the Australian Patent Office denied Dr. Thaler’s application but appealed to the Federal Court, where Dr. Thaler succeeded. On 30th July 2021, the controversial judgement was handed down where Judge Beach’s analysis of the Patent Act 1990 (Cth) concluded that none of the provisions excluded non-human AI as inventors and was consistent with the ‘reality of the current technology’. Consequently, making Australia the first country to judicially recognise AI machines as an inventor in a patent application.
IP Australia appealed the Federal Court’s decision and on 13 April 2022, in a unanimous decision, the Full Court of the Federal Court overturned the Federal Court’s decision and ruled in favour of IP Australia. Here, the Justices highlighted the much-needed attention of legislators when dealing with AI and intellectual property. Special leave to appeal to Australia’s highest court, the High Court, was rejected, ending the DABUS saga down under.
No, No, No!: Many countries follow suit
Most countries rejected Dr. Thaler’s patent applications naming DABUS as an inventor on the basis that only a natural person can be an inventor. Despite his numerous appeals in various judicial courts in different jurisdictions – USA, UK, Europe, Korea, Israel, New Zealand and Australia follow suit. Despite not winning the ultimate fight, Dr. Thaler successfully brought the limelight onto the creation of IP by AI in this digital age. So, what is next?
Legislators to pioneer and pave the path forward
The role of the judicial courts is to apply the law as it stands and not to contemplate what the law ought to be. That is the job of the legislator. DABUS has highlighted the gaps in policy surrounding AI and the desperate need for reform in the law. The DABUS saga may be coming to an end but what is to come next is just beginning.