AI South Africa patent
(Getty Images)
  • South Africa has awarded a patent to an AI-generated invention.
  • It is believed to be the first country in the world to do so.
  • Dabus, the Device for the Autonomous Bootstrapping of Unified Sentience, developed an interlocking container based on fractal geometry.
  • But as a non-legal entity, the AI can’t own the patent. It belongs to Dabus’ creator, Stephen Thaler, who is part of the Artificial Inventor Project.
  • Previous patent applications in the European Union, United Kingdom, and United States have been unsuccessful.
  • For more stories go to www.BusinessInsider.co.za.

South Africa recently became what is believed to be the first country in the world to award a patent to an invention by an Artificial Intelligence (AI).

An interlocking food and beverage container based on fractal geometry has been awarded a patent by South Africa’s Companies and Intellectual Property Commission (CIPC). Confirmation of the patent was published in the commission’s journal on 28 July.

But unlike the hundreds of patents listed in the CIPC’s latest journal, this container was not conceptualised by a human. The patent identifies Dabus – the Device for the Autonomous Bootstrapping of Unified Sentience – as the inventor.

Dabus’ creator, Stephen Thaler, is the owner of the patent awarded by the CIPC.

This is a major victory for the Artificial Inventor Project (AIP) led by Ryan Abbott from the University of Surrey. The project, which filed its first patents in 2019, proposes that the act which qualifies a natural person to be an inventor can be functionally automated by a machine, which, in its case, is represented by Dabus.

Success in South Africa after failure in the UK, EU, and US

But not everyone agrees. Attempts to have patents attributed to Dabus’ inventions have failed in the European Union, United Kingdom, and United States. The AIP has appealed these dismissals and, recently, the European Patent Office (EPO) Board of Appeal upheld Dabus’ rejection, arguing that an inventor on a patent application must have “legal capacity”.

Patent applications have been registered in at least ten other countries, including Brazil, India, China, Japan, and Taiwan.

South Africa is the only country in the world that has awarded a patent to Dabus’ invention. Just a week after the CIPC published its journal of patents, a federal court in Australia ruled that “an inventor can be an artificial intelligence system or device” in response to a challenge by the AIP.

Despite the ruling, Dabus’ patent application has not yet been approved in Australia.

“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,” Erik van der Vyver, of intellectual property law firm Von Seidels, told Business Insider South Africa.

Von Seidels assisted the AIP in its application and Van Der Vyver says the awarding of the patent is not a negative reflection on the CIPC’s control mechanisms, as has been touted in response to the recent development.

“The current discussions in the media about whether South African patents are ‘examined’ or not is somewhat misleading as ‘patent examination’ typically refers to the determination of whether the subject matter [invention] of a patent is in fact eligible to be the subject of a patent, also sometimes referred to as ‘substantive search and examination’ or ‘SEE’,” said Van Der Vyver.

“While it is true that the South African Patent Office does not conduct SSE… the fact that the patent was granted here had nothing to do with the fact that South Africa has a ‘non-examining’ patent system.”

A key element of the AIP’s success in acquiring a patent for Dabus’ invention in South Africa is the lack of a formal definition of “inventor” within the Patent Act. But the Act requires a person applying on behalf of the inventor to provide proof of their authority to do so.

Acquiring the legal right from a machine is complex

And acquiring the legal right from a machine, like Thaler would usually be required to under the Patent Act, is complex.

“If there was no transfer of rights from the inventor to the applicant, the applicant does not have the right to apply for the patent,” Wessel van Wyk, patent attorney at Smit & Van Wyk, told Business Insider SA.

“This is a formal requirement and part of a declaration made by the applicant on a form P3. However, as this invention claims priority from a Patent Cooperation Treaty application, it is likely that the assignment form was not filed at CIPC, because it is assumed that the assignment took place prior to the filing in South Africa.”

Van Der Vyver confirmed to Business Insider SA that the patent application did indeed stem from the Patent Cooperation Treaty (PCT).

“During the PCT International phase the applicant filed what is called a ‘declaration of inventorship’, which means that according to PCT Regulations, the South African patent Registrar could not request any further evidence relating to the identity of the inventor, unless the Registrar reasonably doubted the veracity of the identification,” said Van Der Vyver.

The CIPC confirmed to Business Insider SA that it had awarded a patent to Thaler and Dabus and that it is currently reviewing the Patent Act of 1978 “with a recommendation for amendment, to allow the Commission to conduct substantive searches and examinations.”

“As machines do not act without any human input [in learning, or in addressing a particular question] another way to address protection of inventions made ‘by machines’, is to cite the contributors that set the hyperparameters of the AI to learn or that defined the necessary boundary conditions to arrive at the required answer that the machine provided, as inventors,” said Van Wyk.

“The AI machine then becomes a tool that assisted the individuals involved, to make the invention.  Obviously, the outcome [invention] is not pre-programmed and comprises a certain level of randomness, that was not foreseen by the individuals involved.  Yet another way to address this is to create a separate category of ‘inventions’ made by machines.

“This question is far from being answered worldwide and only once some level of consensus is arrived at, there will be legal certainty in jurisdictions such as South Africa.”

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