Australian court rules an AI can be considered an inventor on patent filings
- Reference: 1627887729
- News link: https://www.theregister.co.uk/2021/08/02/ai_inventor_allowed_in_australia/
- Source link:
In a case brought by Stephen Thaler, who has [1]filed and lost similar cases in other jurisdictions, Australia's Federal Court last month heard and decided that the nation's Commissioner of Patents erred when deciding that an AI can't be considered an inventor.
Justice Beach reached that conclusion because nothing in Australia law says the applicant for a patent must be human.
[2]
As Beach's judgement [3]puts it : "… in my view an artificial intelligence system can be an inventor for the purposes of the Act.
[4]
[5]
"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."
The Justice also worried that the Commissioner of Patents' logic in rejecting Thaler's patent submissions was faulty.
[6]
"On the Commissioner's logic, if you had a patentable invention but no human inventor, you could not apply for a patent," the judgement states. "Nothing in the Act justifies such a result."
Justice Beach therefore sent Thaler's applications back to the Commissioner of Patents, with instructions to re-consider the reasons for their rejection.
Thaler has filed patent applications around the world in the name of DABUS – a Device for the Autonomous Boot-strapping of Unified Sentience. Among the items DABUS has invented are a food container and a light-emitting beacon.
[7]
The UK, USA and European Union have not chosen to adopt similar logic – and indeed the USA specifies that inventors must be human. However DABUS was granted a patent in South Africa last week, for its food container.
[8]Cloudflare offers $100,000 for prior art to nuke networking patents a troll has accused it of ripping off
[9]Apple on the hook for another $503m in decade-long VirnetX patent rip-off legal marathon
[10]Oracle accused of eating software maker's lunch with hostile hiring, trade secret theft
Australian intellectual property lawyer Mark Summerfield has strongly criticised Justice Beach's decision on grounds that it could produce junk patents.
"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," he wrote on his [11]Patentology blog .
"I do not consider the decision … to serve Australia’s interests," Summerfield added. "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."
Speaking to Guardian Australia , Summerfield [12]raised the prospect of a flood of patents being awarded to machine-generated inventions, creating so many patents that other innovation becomes impossible.
On his blog, Summerfield suggested "it may be perfectly reasonable to exclude those inventions that have not been devised by a human inventor.
"It all depends upon what types of activity you wish to incentivise through the patent system.
"If you want to promote the advancement of human ingenuity, while offering lesser (or no) rewards for automated innovation, then it is perfectly sound policy to deny patents on machine-made inventions."
Summerfield wrote that he hopes Australia's patent authorities appeal – and win – because Justice Beach's decision is "neither as clever nor as progressive as the judge appears to believe." ®
Get our [13]Tech Resources
[1] https://www.theregister.com/2020/04/29/ai_patent_denied/
[2] https://pubads.g.doubleclick.net/gampad/jump?co=1&iu=/6978/reg_offbeat/legal&sz=300x50%7C300x100%7C300x250%7C300x251%7C300x252%7C300x600%7C300x601&tile=2&c=2YQfCXZ4u-tpNtzOyZndBiQAAAA8&t=ct%3Dns%26unitnum%3D2%26raptor%3Dcondor%26pos%3Dtop%26test%3D0
[3] https://www.judgments.fedcourt.gov.au/judgments/Judgments/fca/single/2021/2021fca0879
[4] https://pubads.g.doubleclick.net/gampad/jump?co=1&iu=/6978/reg_offbeat/legal&sz=300x50%7C300x100%7C300x250%7C300x251%7C300x252%7C300x600%7C300x601&tile=4&c=44YQfCXZ4u-tpNtzOyZndBiQAAAA8&t=ct%3Dns%26unitnum%3D4%26raptor%3Dfalcon%26pos%3Dmid%26test%3D0
[5] https://pubads.g.doubleclick.net/gampad/jump?co=1&iu=/6978/reg_offbeat/legal&sz=300x50%7C300x100%7C300x250%7C300x251%7C300x252%7C300x600%7C300x601&tile=3&c=33YQfCXZ4u-tpNtzOyZndBiQAAAA8&t=ct%3Dns%26unitnum%3D3%26raptor%3Deagle%26pos%3Dmid%26test%3D0
[6] https://pubads.g.doubleclick.net/gampad/jump?co=1&iu=/6978/reg_offbeat/legal&sz=300x50%7C300x100%7C300x250%7C300x251%7C300x252%7C300x600%7C300x601&tile=4&c=44YQfCXZ4u-tpNtzOyZndBiQAAAA8&t=ct%3Dns%26unitnum%3D4%26raptor%3Dfalcon%26pos%3Dmid%26test%3D0
[7] https://pubads.g.doubleclick.net/gampad/jump?co=1&iu=/6978/reg_offbeat/legal&sz=300x50%7C300x100%7C300x250%7C300x251%7C300x252%7C300x600%7C300x601&tile=3&c=33YQfCXZ4u-tpNtzOyZndBiQAAAA8&t=ct%3Dns%26unitnum%3D3%26raptor%3Deagle%26pos%3Dmid%26test%3D0
[8] https://www.theregister.com/2021/04/26/cloudflare_patent_troll/
[9] https://www.theregister.com/2020/11/02/apple_virnetx_award/
[10] https://www.theregister.com/2021/06/03/oracle_centralsquare_hiring/
[11] https://blog.patentology.com.au/2021/08/in-becoming-first-country-to-recognise.html
[12] https://www.theguardian.com/technology/2021/jul/30/im-sorry-dave-im-afraid-i-invented-that-australian-court-finds-ai-systems-can-be-recognised-under-patent-law
[13] https://whitepapers.theregister.com/
Re: AI can be an inventor
Well I suppose it makes a change from an Infinite Number of Monkeys registering Patents.
Re: AI can be an inventor
Surely one of the tests of artificial intelligence is that we *can’t* say how it comes to its decisions. It determines its own logic based on its interpretation of what it’s been taught. It’s the same as with “natural” intelligence, you develop your own way of working through things and can’t always say how you arrived at a particular conclusion. You can verify it makes sense by working back through logic but that’s not the same as the original process.
Re: AI can be an inventor
> Well I certainly agree - the day we have actual AI, that is.
Agreed. And all the patent examiner has to do is ring up the AI to ask it a question. If the answer is unsatisfactory then the patent should be denied (or put on hold) until such time as the question is answered.
After all, if this DABUS is genuinely an AI then it should be able to pass the Turing test.
"Junk patents"?
I think the real problem here is that such patents can be submitted and accepted by the patent system, regardless of their author. If meaningful innovation would truly be a requirement, then a machine capable of solving such real problems on its own would be a genuine asset, not simply yet another source of income for patent trolls.
Do machines have rights now?
So if a machine is the inventor, do the IP rights belong to the machine? Do they last for the "life" of the machine, until its next reboot, or just for the run of the program that created the invention? What if they modify the program?
It doesn't look like the judge has thought this one through.
Re: Do machines have rights now?
And, more importantly, do we really need light emitting food containers
Re: do we really need light emitting food containers?
Yes. Yes we do.
How else can we find our sandwiches in the dark? What...? Use the light switch!?! Are you nuts? Soooooo 20th century. Who has time for that ?
No, I haven't thought it through. No, I don't care. Give my light emitting food container!!1!One!!1!
Re: Do machines have rights now?
Does the AI have sufficient mental competency to sell or licence the patent to others, and to enter into contracts for said? If not, and the AI's "owner" were to monetise the invention for their own benefit, is that a case of abuse?
If a third party makes an unlicensed used of the patent, is the AI expected to protect their claim in court? What if the AI does not have the ability to instruct a lawyer? Does the AI become a ward of court, and should all proceeds from the invention be put in a trust fund to benefit the AI and its successors?
If not, and if everyone knows that the AI is unable (or unwilling) to licence or protect the patent, then anyone else can use it with impunity, which makes the patent worthless - assuming the AI doesn't develop these capabilities in the next 17 years.
What a load of bollocks.
Re: Do machines have rights now?
> Does the AI have sufficient mental competency to sell or licence the patent to others
Not necessarily a good analogy. Plenty of human inventors lack the skills to licence their products effectively. That's no disrespect to them - it's just a different skillset that they aren't practised in.
Do patent inventing algorithms dream of electric sheep, now?
"Do they last for the "life" of the machine, until its next reboot..."
I don't know how Australian law works, but patents are typically granted for 20 years, subject to renewal. It's copyright that depends on the lifetime of the mouse author.
Scam
The whole patent idea has gone past its use by date. If you look through some recent patent, it has nothing to do with invention, just chancers trying to patent already patented ideas under different guises or patent obvious things.
Now that you enable algorithmic patenting, it's not going to be long before someone will just run a script to patent everything.
RSA
The patent system was already faltering in the mid-18th century. The RSA (then, the Society for the Advancement of Arts, Manufactures and Commerce - the "Royal" prefix wasn't added until much later) was formed as an alternative to patents. People wishing to support its ideals contributed to its funds to issue financial-based awards to inventors who were prepared to share their ideas for the common good, rather than protect them with patents. It meant useful inventions could see much broader utilisation.
In later years the RSA were instrumental in bringing about national exam boards - until then, it was the school's reputation that gave you credence, rather than your own ability. A step towards a merit-based and more egalitarian society. A long way still to go, but it was a step in the right direction. The RSA is still around and playing its part, usually behind the scenes, bringing like-minded people together to create synergies that make life better for those in greater need.
"it may be perfectly reasonable to exclude those inventions that have not been devised by a human inventor."
In which case, legislators need to the change law. The judge hasn't made a decision on the basis of what he thinks is beneficial for society. That's not his job; that's what we elect people for. His role is to determine the law. And he he has said Australian law doesn't prohibit machine-generated patents. Maybe he has erred. But if not, then it's not his fault that's allowed.
The judge has based his decision on his knowledge of the law without any understanding of what am AI, or indeed what this particular AI is.
Whether the product is the result of programmed input from a human or is a truly randomly inspired creation form a smart machine that discerned a need for it's invention, something I strongly doubt.
It seems likely the guy who brought the case in the first place is testing the legal water with a view to automating patent trolling.
Judges just rule based on the law
"Australian intellectual property lawyer Mark Summerfield has strongly criticised Justice Beach's decision on grounds that it could produce junk patents."
Whether or not the decision produces junk patents can't be a concern for the judge unless the law says so... which it apparently doesn't. The thing to do here is not to criticise the decision but to lobby the government for a change in the law.
AI can be an inventor
Well I certainly agree - the day we have actual AI, that is.
Right now all we have are statistical analysis machines. And we can't even say how they come to their decisions.
That is black box computing, not AI.