SA First Country in the World to Award a Patent to an AI-Made Invention

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South Africa is believed to be the first country in the world to award a patent to an invention created by an artificial intelligence (AI).

Recently, a new interlocking food and beverage container based on fractal geometry has been awarded a patent by SA’s Companies and Intellectual Property Commission (CIPC). The container, unlike the myriad other patented inventions published in the commission’s journal on 28 July 2021, was entirely conceptualised by a non-human AI device – DABUS – the Device for the Autonomous Bootstrapping of Unified Sentience.

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The commission lists the AI as the inventor of the container – “DABUS, The invention was autonomously generated by an artificial intelligence,” the journal reads. Dabus’ creator, Stephen Thaler is the owner of the patent awarded by the CIPC.

According to Business Insider, this represents a major victory for the Artificial Inventor Project (AIP) led by Ryan Abbott of the University of Surrey in the UK. The project filed its first patents in 2019 and proposes that the act which qualifies a natural human person to be an inventor can be functionally automated by a machine, or in this case, an AI, represented by DABUS.

However, DABUS inventions have failed to garner patents in the European Union, the US and the UK in recent attempts. The AIP has since appealed the dismissals at the European Patent Office (EPO), but the EPO’s board of appeals upheld DABUS’ rejection, arguing that a patent can only be awarded to an inventor that has “legal capacity.”

Business Insider reports that more patent applications from DABUS and the AIP have been registered in at least ten other countries, including Brazil, India, China, Japan and Taiwan. SA remains the only country in the world, so far, to award a patent to the AI inventor.

Australia has also recently ruled that AIs can indeed be patented inventors, though the country has yet to approve DABUS’ patent application.

South Africa’s Patenting Laws are Different

Part of the AI’s success in patenting inventions in South Africa comes from the fact that the country’s Patent Act has no clear definition for an “inventor”, but the act does require a person applying on behalf of the inventor to provide proof of their authority to do so. In this case, that person is DABUS’ creator, Thaler.

“The other offices’ decisions not to grant the patents in their own countries were based on interpretations of their own laws to the effect that a non-human entity does not or cannot have inventive capacity, and therefore cannot have rights to apply for a patent or even pass those right on to someone else,” says Erik van der Vyver of intellectual property firm Von Seidels, quoted by Business Insider.

The CIPC says that it has indeed awarded to patent to DABUS’s creator Thaler, but will be looking into reviewing the Patent Act, “with a recommendation for amendment, to allow the Commission to conduct substantive searches and examinations.” This is due to recent criticisms of the CIPC’s patenting procedures in awarding the AI the patent.

In terms of legality, the questions raised by DABUS’ patent are far from being answered, but Wessel van Wyk, patent attorney at Smit & Van Wyk believes that perhaps a separate category of “inventions” made by machines should be put into place to address these.

By Luis Monzon
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