Patent protection: Australian court recognizes KI as inventor

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Legal success for the US entrepreneur and programmer Stephen Thaler: The Federal Court of Australia has recognized the “connectionist artificial intelligence” (AI) Dabus, which he helped develop, as a creative force. The variant of a neural network can therefore in principle be regarded as an inventor within the meaning of the Australian patent law and registered as such in an application for a corresponding industrial property right.

“In my opinion, an artificial intelligence system can be an inventor within the meaning of the law”, writes Judge Jonathan Beach in his verdict late last week. “Inventor” is a noun, he explains. So it could be a person or a thing inventing something. This view also reflects the reality of many otherwise patentable inventions: with many of them, “one could not reasonably say” that a person is the inventor. “Moreover, nothing in the patent law suggests a different conclusion.

Although “only one person or another legal person” can be the owner or holder of a patent, explains Beach. “This of course also includes an inventor who is a human being. However, it is a fallacy to conclude from this that an inventor can only be a human being. An inventor can be a system with artificial intelligence,” but not in such a case the patent holder.

More is required of him than the mere recourse to use of the term “inventor” that is thousands of years old, the lawyer becomes prosaic. If words are just “pictures of ideas on paper” and “the skin of a living thought” that “can vary widely,” he stressed, “he must grapple with the underlying idea and acknowledge the evolving nature of patentable inventions and their creators.” Beach. “We are both created and creative. Why can’t our own creations also create something?”

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The National Patent Office, IP Australia, had previously decidedthat Dabus cannot be accepted as an inventor and that a patent application by the AI ​​is not possible. The case now goes back to the authority and the “Commissioner of Patents” responsible there, who issues the temporary monopoly rights. He must now re-examine Thaler’s application in the light of the judgment.

Thaler describes Dabus as a network of several neural systems that – like the human brain – can generate new ideas by changing the connections between mechanical synapses. He has already filed two patent applications in numerous jurisdictions around the world for inventions that are said to be traced back to Dabus. He describes himself as the “legal successor” of the AI. It is about a container for storing food and “devices and procedures” with which, for example, those in need of rescue could attract “increased attention” by emitting technical signals.

The European Patent Office (EPO) had rejected the applications at the end of 2019, because according to the European Patent Convention, a person had to be named as the inventor. Patent offices and courts in the USA and Great Britain decided similarly. South Africa, on the other hand, has only recently the first country in the world to issue a patent, in which Dabus is shown as the creator and Thaler as the rights holder. However, there is no formal examination of claims there; interested parties only have to fill out an application.

Australian patent attorney Mark Summerfield criticizes the judgment of the Federal Supreme Court as “activism”that does not serve the interests of the country. It leads to the fact that patent monopolies can be granted and enforced “against the general public” with the stroke of a hand. Compared to the Guardian warned the lawyer of a flood of industrial property rights for “machine-made inventions” that hampered real innovation. He hopes IP Australia will appeal.

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