Criticism of Dabus patent
In July 2021, South Africa's patent office granted a patent to an invention created by an AI system, constituting a world first in a field that has traditionally been hostile to "artificially intelligent" inventors.(1)
The invention that received the go-ahead is for a system of interlocking food containers with a fractal geometry-based design that improves grip and heat transfer. This makes them easily graspable and stackable by robots.
The Device for the Autonomous Bootstrapping of Unified Sentience (Dabus), the AI machine that "designed the invention", is the creation of Stephen Thaler, chief executive officer of US-based Imagination Engines.
Thaler created the source code for Dabus, which he named as the "inventor" of the product in patent applications filed around the world, while naming himself as the "applicant" and thus the patentee.
While South Africa's patent award is certainly trailblazing, it has received considerable backlash from international IP experts.
Some have labelled it a mistake or an oversight by South Africa's patent office, part of the Companies and Intellectual Property Commission, with commentators pointing out that the granting of the patent was the result of a misinterpretation of legislative rules and procedures for nationalising Patent Cooperation Treaty applications in South Africa.
Many have also seen the patent award as an indictment of South Africa's patent procedures, which currently consist only of a formal examination step. This involves a checkbox-style evaluation to ensure that all of the relevant forms have been submitted and are duly completed.
Critics suggest that if South Africa had had a substantive search and examination system (SSE) in place, the Dabus patent application would have been rejected. In fact, SSE is irrelevant in this context as even the formal examination, which the patent office is obliged to conduct, seems to have been lacking.
South African patent laws contain no definition of an "inventor" and no substantive examination is required. As long as the formal requirements are met, the patent can be granted.
However, this still leads to the question of how, in the case of Dabus, Thaler obtained the right to apply for the patent from a machine. Unresolved difficulties of this nature could result in the patent being contested in the future. It is a requirement of South African patent law that if the applicant for a patent is not the inventor, the applicant must provide proof of their right to apply in lieu of the inventor. As Dabus had been cited as inventor, how should a machine "decide" to assign its (apparent) rights to it creator – and furthermore, how could this possibly be effected in reality?
Those in favour of granting patents to AI systems assert that this will encourage innovation and investment in AI systems, prevent the miscrediting of human beings, and notify the public who – or indeed, what – the actual creators of an invention are.
However, the question remains: can the Dabus application withstand legal examination? It is also worth asking whether South Africa's IP laws are keeping up with technology innovation. This patent award should serve as a wake-up call to governments around the world to accelerate the process of modernising and harmonising IP laws, regulations and practices in general.
For further information on this topic please contact David Gilson at Spoor & Fisher by telephone (+27 12 676 1111) or email ([email protected]). The Spoor & Fisher website can be accessed at www.spoor.com.