By Sujit Bhar
Not yet time for “Skynet’ to take over—and for John Connor to fight to save the future world—but that artifical intelligence (AI) is gaining ground was evident when an Australian court recently decreed that AI can be recognised as an inventor in a patent submission. Which means that, like a corporate body, AI can be termed to be a legal entity, a “person”.
The judgment is on merits and considers the legalities and the prevalent acts. Before going into the issue, one has to make a note of that Stephen Thaler is an inventor, and he is the crusader here. What inventor Thaler has done is create an “inventor”, named DABUS, or a device for the Autonomous Boot-strapping of Unified Sentience, an AI entity. DABUS has gone right ahead and “invented” a food container and a light-emitting beacon. Normal assumptions would be that it was Thaler who was the inventor, who used the help of a device (AI) for his inventions. But Thaler wants the credit to go to DABUS.
What Thaler did was file patent applications around the world in the name of DABUS. However, Thaler lost in his quest in other jurisdictions, before Australia’s Federal Court heard and decided that the nation’s Commissioner of Patents erred when deciding that an AI can’t be considered an inventor. In reaching this conclusion, Justice Beach found nothing in Australian law that says that the applicant for a patent must be human. The judge said: “… in my view an artificial intelligence system can be an inventor for the purposes of the Act.”
He elaborated further on his assumption, saying: “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.”
And what did the judge say about the commissioner’s interpretation? He said: “On the Commissioner’s logic, if you had a patentable invention but no human inventor, you could not apply for a patent. Nothing in the Act justifies such a result.” So the judge sent the patent application back to the Commissioner of Patents, instructing him to re-consider the reasons for their rejection.
To implant this into the Indian system, we need to look at two legalities. First, what is a legal entity as per law and second, who can apply for a patent in India. There are six types of legal entities in India as per the Companies Act of 2013. They are private limited companies, a public company, a sole proprietorship, a one-person company, a partnership and a limited liability partnership (LLP). Apart from that a person (a human) is a legal entity, so is a society, registered under the Societies Registration Act XXI of 1860. The last section will also include trusts.
The logic employed here is that a legal entity is somebody or some entity that can sue, and be sued in court. A company has an existence independent of its owners/promoters/ shareholders.
THE PATENT ISSUE
The patent system in India is governed by the Patents Act, 1970 (No. 39 of 1970) as amended by the Patents (Amendment) Act, 2005 and the Patents Rules, 2003. The Patent Rules are regularly amended in consonance with the changing environment, most recent being in 2016.
Let us see what the Intellectual Property Rights office of the Union government says in its 2020 publication. As per that publication, “a patent is a statutory right for an invention granted for a limited period of time to the patentee by the Government, in exchange of full disclosure of his invention for excluding others, from making, using, selling, importing the patented product or process for producing that product for those purposes without his consent.”
Note that patentee is a general mention only.
When it comes to the question of “who can apply for a patent?” the publication says: “A patent application can be filed either by true and first inventor or his assignee, either alone or jointly with any other person. However, legal representative of any deceased person can also make an application for patent.” It clarifies that it has to be a person. However, there is a caveat in this. Here “person” will mean a legal entity, and that should include all the seven categories as stated above. A company can also hold a patent, provided the innovation has been first done by a person or a group of people and then that patent has been sold or handed over to the company. So, basically, it seems that the terms “person” and “legal entity” have been used interchangeably. The courts will do the fine dissection, but could there be just a small possibility of including AI here as well?
CONTROVERSIAL DECISION
Let us study in detail what transpired in Australia. This view has not been accepted by major patent issuing countries, such as the UK and USA or even the European Union. The USA specifies that inventors must be human. But Thaler has also had success in South Africa, where DABUS was granted a patent for its food container.
Lawyers have not been too happy with this judgment, though. Mark Summerfield, a leading intellectual property lawyer has been reported to be critical of Justice Beach’s order. Summerfield says this could produce junk patents. He has written in a blog, called Patentology, that “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.”
The opinion of Summerfield is scary. He says that there could be a flood of patents awarded to machine-generated inventions. This, he said, will create so many patents that other innovation may become impossible.
In this, one must realise how a patent is awarded. The Act is clear that “an invention relating either to a product or process that is new, involving inventive step and capable of industrial application can be patented. However, it must not fall into the categories of inventions that are non-patentable under Sections 3 and 4 of the Act.” Which means that not only is the final product patentable, but if there are inventive steps in between, they too can, by definition, be patented.
Why is that important? This means that if a machine, or an AI—which is basically a software-driven machine/ computer—can produce innumerable permutations and combinations of a procedure and patents them all, then it will not be possible for future inventors to follow any unpatented route to a goal. This is eminently possible in development of new molecules in medical research.
Even if the threat of Skynet isn’t evident as yet and there is no Terminator knocking at our doors, a bit of judicial activism in Australia, as it is being termed, can lead to unforeseen problems.